\nExhibit Description
\n——- ———–
\n1.1(a)(19) Description of Casino Area and Public Land
\n1.1(a)(30) Form of Closing Certificates
\n1.1(a)(42) Form of Conveyance Agreement
\n1.1(a)(83) Form of Guaranty and Keep Well Agreement
\n1.1(a)(113) Form of Performance Guaranty
\n7.7(a) Description of Funding of Capital Maintenance Fund
\n8.1(c) Description of Developer’s organizational structure, etc.
\n8.1(d) Description of Developer’s capabilities, etc.
\n8.1(e) Cost Budgets for Casino Complex
\n8.1(f) Financial Projections for Casino Complex
\n8.1(g) Description of Developer’s financing, etc.
\n8.1(h) Financial Statements for Developer’s existing gaming operations
\n8.1(i) Description of Casino Complex, etc.
\n8.1(j) Developer’s community contributions, etc. in the area of Development
\n8.1(k) Developer’s plan for assisting businesses that may experience
\n employee shortages due to the Development
\n8.1(l) Description of the manner in which Development will enhance City
\n as a desirable destination for tourists
\n8.1(m) Developer’s community contributions, etc. outside the area of the
\n Development
\n8.1(n) Developer’s marketing plan, etc.
\n8.1(o) Description of staff positions, etc.
\n8.1(p) Developer’s training programs
\n8.1(q) Developer’s Equal Opportunity Employment Plan
\n8.1(r) Compliance with prevailing wage determinations
\n8.1(s) Commitment re: Detroit resident apprentices journeymen
\n8.1(t) Commitment re: Executive Order 22
\n8.1(u) Commitment re: local purchasing
\n8.1(v) Description of Developer’s traffic and transportation plan
\n8.1(w) Description of Developer’s plan for transportation management
\n8.1(x) Description of Developer’s plan re: regional water facilities
\n8.1(y) Description of Developer’s plan re: regional sewer facilities
\n8.1(z) Developer’s commitment re: PLD
\n8.1(aa) Description of Developer’s plan to improve fire protection services
\n8.1(bb) Description of Developer’s plan to improve police protection services
\n8.1(cc) Description of Developer’s plan re: child care services
\n8.1(dd) Description of Developer’s plan re: compulsive behavior disorder
\n treatment services
\n8.1(ee) Description of Developer’s plan re: underage gambling
\n13.1 Insurance Schedule
\n21.25 Form of estoppel certificate
\n<\/s><\/c><\/caption>\n<\/table>\n vi<\/p>\n
CROSS REFERENCE TABLE FOR
\n ————————-
\n ARTICLE VIII EXHIBITS
\n ———————<\/p>\n
For informational purposes only, the covenants corresponding to the
\nExhibits referred to in Article VIII of the Agreement may be found in the
\n ————
\nfollowing Sections. The inclusion of this cross reference table in no way
\nexpands, limits, alters or amends any right, obligation or remedy of the parties
\nhereto.<\/p>\n
SECTION IN WHICH CORRESPONDING
\nEXHIBIT REFERENCE COVENANT MAY BE FOUND
\n—————– —————————————-<\/p>\n
8.1(c) 7.13(a) and 7.13(b)
\n8.1(d) Not Applicable
\n8.1(e) 2.6(a)
\n8.1(f) Not Applicable
\n8.1(g) 2.10 and 2.6(b)
\n8.1(h) Not Applicable
\n8.1(i) 4.1(a)
\n8.1(j) 2.6(c)
\n8.1(k) 2.6(c)
\n8.1(l) 2.6(c)
\n8.1(m) 2.6(c)
\n8.1(n) 2.6(c) and 7.6
\n8.1(o) 2.6(d)
\n8.1(p) 2.6(c)
\n8.1(q) 2.6(c), 2.6(e), 2.6(f), 2.6(g), 2.6(h) and 2.6(i)
\n8.1(r) 2.6(c)
\n8.1(s) 2.6(c)
\n8.1(t) 2.6(i)
\n8.1(u) 2.6(c) and 2.6(u)
\n8.1(v) 2.6(c)
\n8.1(w) 2.6(c)
\n8.1(x) 2.6(c) and 4.11
\n8.1(y) 2.6(c) and 4.11
\n8.1(z) 2.6(c)
\n8.1(aa) Not Applicable
\n8.1(bb) Not Applicable
\n8.1(cc) 2.6(c)
\n8.1(dd) 2.6(c)
\n8.1(ee) 2.6(c)<\/p>\n
vii<\/p>\n
AMENDED AND RESTATED
\n DEVELOPMENT AGREEMENT<\/p>\n
THIS DEVELOPMENT AGREEMENT (“Agreement”) as originally executed as of the
\n12th day of March, 1998 (the “Original Agreement”), is amended and restated as
\nof the 9th day of April, 1998, by and among the City of Detroit, a municipal
\ncorporation (“City”), The Economic Development Corporation of the City of
\nDetroit, a Michigan public body corporate (“EDC”), having its principal place of
\nbusiness at 211 West Fort, Suite 900, Detroit, Michigan 48226 and MGM Grand
\nDetroit, LLC, a Delaware limited liability company (“Developer”) having its
\nprincipal place of business at 500 Woodward Avenue, Suite 4000, Detroit,
\nMichigan 48226-3425<\/p>\n
W I T N E S S E T H:<\/p>\n
NOW, THEREFORE, in consideration of the mutual promises and covenants
\ncontained herein, the parties hereby amend and restate the Original Agreement
\nand agree as follows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS<\/p>\n
1.1 Definitions.
\n ———– <\/p>\n
(a) The terms defined in Article I shall have the following meanings
\n ———
\nfor purposes of this Agreement when initially capitalized herein:<\/p>\n
(1) “Acceptable Guarantor” shall mean either (i) Parent Company
\n or such other Person provided that on the Closing Date in the case of the
\n Parent Company and on the date of delivery of the Performance Guaranty in
\n the case of any other Person, either (x) has a shareholders’ equity,
\n determined in accordance with GAAP, of at least Seven Hundred Fifty Million
\n Dollars ($750,000,000) or (y)(A) has uncommitted credit available for
\n immediate draw under its primary credit facility plus (B) unrestricted
\n cash, which aggregates not less than Two Hundred Seventy-Five Million
\n Dollars ($275,000,000); and (C) has a primary credit facility which
\n contains a net worth or similar covenant of which it is not in violation or
\n (ii) such other Person or Persons as are reasonably acceptable to City;<\/p>\n
(2) “Act” means the Michigan Gaming Control and Revenue Act,
\n being Sections 432.101 et. seq. of the Michigan Compiled Laws, as amended
\n — —
\n from time to time, together with all rules and regulations issued in
\n connection therewith or promulgated thereunder.<\/p>\n
(3) “Addenda” means changes to the Design Documents made prior to
\n the execution of a Contractor Agreement.<\/p>\n
(4) “Adjusted Equity” means an amount equal to the sum of (i) the
\n Net Worth of Developer as reflected on the most recent audited financial
\n statements of Developer, provided that prior to Completion, all assets
\n shall be valued at cost, without allowance for depreciation or
\n amortization, all development and construction costs and expenses
\n (including construction loan interest) shall be capitalized, and the value
\n of goodwill shall be treated as zero, plus (ii) the “Valuation Adjustment”
\n as hereinafter determined. The Valuation Adjustment shall be determined as
\n follows:<\/p>\n
(A) Until the first redetermination of the Valuation
\n Adjustment, the Valuation Adjustment shall equal the sum of (i) the
\n excess, if any, of the fair market value of Developer’s tangible and
\n intangible assets as determined in the manner provided below, over the
\n value of such assets as determined in calculating Net Worth as of the
\n date of the Valuation Adjustment, in each case valuing goodwill at
\n zero, plus (ii) the excess, if any, of the “going concern value” of
\n Developer as determined in the manner provided below, over the value
\n of any goodwill as determined in calculating Net Worth as of the date
\n of the Valuation Adjustment.<\/p>\n
(B) The going concern value shall be an amount equal to four
\n and one-half (4.5) times the Developer’s trailing twelve (12) month’s
\n EBITDA (provided that prior to the first anniversary of Completion,
\n for purposes of the foregoing computation, EBITDA shall be determined
\n from Completion and annualized).<\/p>\n
(C) At any time, Developer may redetermine its Valuation
\n Adjustment. Once redetermined, the Valuation Adjustment shall remain
\n in effect until the next redetermination.<\/p>\n
(D) In making a determination or redetermination of the
\n Valuation Adjustment, the fair market value of Developer’s tangible
\n and intangible assets shall be determined by appraisal, and the value
\n of Developer’s value as a going concern shall be determined by an
\n opinion of valuation. A real estate appraisal shall be performed by an
\n M.A.I. appraiser. An appraisal of other tangible property shall be
\n performed by a recognized appraiser of such types of property. An
\n appraisal of intangible assets shall be performed by a recognized
\n expert in valuing such property. The opinion of going concern value
\n shall be rendered by one or more recognized valuation expert(s) with
\n experience in valuing businesses similar to Developer’s business. All
\n such appraisers and other experts shall be reasonably acceptable to
\n City and Developer.<\/p>\n
(5) “Affiliate” means a Person that directly, or indirectly
\n through one or more intermediaries, Controls or is Controlled by, or is
\n under common Control with, another Person. For purposes of clarification
\n Affiliates of Developer include, without limitation, Parent Company and
\n Partners Detroit, LLC, a Michigan limited liability company.<\/p>\n
2<\/p>\n
(6) “Agreed Upon Opening Date” means the last day of the 36th
\n full calendar month following the issuance of the Building Permit, provided
\n however, the Agreed Upon Opening Date shall be extended by that period of
\n time by which the Submission Date is earlier than the Outside Submission
\n Date.<\/p>\n
(7) “Allocable Share” means a fraction, the numerator of which is
\n one and the denominator of which is equal to the number of Land-Based
\n Casino Developments not yet open to the public for business, provided that
\n if City is notified in a writing signed by the Developer and the Other
\n Land-Based Casino Developers that the Allocable Share of Developer is a
\n specified percentage, then the Allocable Share of Developer shall equal
\n such specified percentage so long as the sum of the specified percentages
\n of Developer and the Other Land-Based Casino Developers equals one hundred
\n percent (100%).<\/p>\n
(8) “Alteration” means any demolition, alteration,
\n reconstruction, addition, modification, renovation or improvement in or to
\n the Development but shall not include any refurbishment, remodeling or
\n rehabilitation.<\/p>\n
(9) “Annual Business Plan” means collectively (i) a report for
\n the forthcoming Fiscal Year to be prepared by Developer and\/or Casino
\n Component Manager\/Operators consisting of an estimate of revenues, expenses
\n and payments into the Capital Maintenance Fund and (ii) a general summary
\n containing nonconfidential information about how the Casino Complex is
\n anticipated to be marketed and promoted, including the total amounts
\n budgeted and spent for the marketing program each year.<\/p>\n
(10) “Annualized Cash Flow” means, as of the last day of any
\n fiscal quarter of Developer, EBITDA for the most recent four fiscal
\n quarters of Developer ended on that date, less (i) capital expenditures
\n (not otherwise deducted in determining EBITDA) in excess of long term debt
\n incurred to fund such capital expenditures and (ii) distributions made to
\n Developer’s members in an amount estimated to be sufficient to pay federal,
\n state and local income tax payments of such members (or their respective
\n members) to the extent required or permitted under Developer’s operating
\n agreement.<\/p>\n
(11) “Architect” means an architectural firm retained by
\n Developer to prepare Design Documents and perform other Design Services.<\/p>\n
(12) “Architect Agreement” means an agreement between Developer
\n and an Architect for the performance of Design Services.<\/p>\n
(13) “Board” shall mean the Michigan Gaming Control Board, or its
\n successors.<\/p>\n
(14) “Books and Records” means all revenue records and any other
\n accounting or financial documents or records, general ledgers, accounts
\n receivable records, <\/p>\n
3<\/p>\n
accounts payable records, invoices, payroll records, expense records, or
\n income records, relating to or concerning the business operations of the
\n Developer and the Development. Books and Records shall not include any (i)
\n information Developer or Casino Component Manager\/Operator is required by
\n law not to disclose; (ii) customer specific information; or (iii) any
\n information subject to written confidentiality undertakings with third
\n parties which: (x) were agreed to by Developer and\/or any Casino Component
\n Manager\/Operator in good faith and not for the purpose of avoiding
\n disclosure under this Agreement and (y) the exclusion of which information
\n from Books and Records would not cause the available Books and Records to
\n fail to fairly present the operations or financial results of the Developer
\n or the Development, taken as a whole.<\/p>\n
(15) “Building Permit” means that document issued by the City
\n Department of Building and Safety Engineering authorizing commencement of
\n construction of the Casino Complex pursuant to Section 12-11-17.0 of
\n Ordinance 290-H, Chapter 12, Article 11, Administration and Enforcement
\n Provisions of the Official Building Code of the City.<\/p>\n
(16) “Building Permit Submission” shall have the same meaning
\n ascribed to it in Section 4.4(b).
\n ————– <\/p>\n
(17) “Business Days” or “Work Days” means all weekdays except
\n Saturday and Sunday and those that are official legal holidays of the City,
\n the State or the United States government. Unless specifically stated as
\n “Business Days” or “Work Days,” a reference to “days” means calendar days.<\/p>\n
(18) “Casino” means any premises wherein gaming is conducted and
\n includes all buildings, improvements, equipment and facilities used or
\n maintained in connection with such gaming.<\/p>\n
(19) “Casino Area” means the real estate described on Exhibit
\n ——-
\n 1.1(a)(19), together with all rights, covenants, rights of way and
\n ———–
\n appurtenances belonging or in anywise appertaining thereto.<\/p>\n
(20) “Casino Complex” means the Casino and all buildings, hotel
\n structures, recreational or entertainment facilities, meeting rooms and
\n conference centers, restaurants or other dining facilities, bars and
\n lounges, retail stores, parking, private bus, limousine and taxi parking
\n and staging areas, and other amenities that are connected with, or operated
\n in such an integral manner as to form a part of the same operation, whether
\n on the same tract of land or otherwise.<\/p>\n
(21) “Casino Component Management Agreement” means any management
\n agreement between Developer and a Casino Component Manager\/Operator
\n pertaining to the management and\/or operation of one or more Covered
\n Components.<\/p>\n
4<\/p>\n
(22) “Casino Component Manager\/Operator” means the Person(s)
\n engaged, hired and\/or retained by Developer to manage and\/or operate one or
\n more Covered Components under a Casino Component Management Agreement.<\/p>\n
(23) “Casino Gaming Operations” means any gaming operations
\n permitted under the Act and offered or conducted at or on the Development.<\/p>\n
(24) “Casino License” means the license issued by the Board to
\n operate the Casino and engage in Casino Gaming Operations.<\/p>\n
(25) “Casino Manager” means the Person engaged, hired or retained
\n by Developer to manage and\/or operate the Casino and the Casino Gaming
\n Operations.<\/p>\n
(26) “Certificate of Suitability” means the certificate issued by
\n the Board.<\/p>\n
(27) “City” means the City of Detroit, a Michigan municipal
\n corporation.<\/p>\n
(28) “City Contribution” means an amount equal to the sum of (i)
\n the cost of acquiring the Public Land not owned by the City prior to the
\n Execution Date and any improvements thereon at the fair market value
\n determined by appraisal, subject to Section 2.9 plus (ii) the relocation
\n ———–
\n payments pertaining to the Public Land, up to but not to exceed Fifty
\n Million Dollars ($50,000,000), payable at the election of the City in
\n either cash or land in the Casino Area valued in accordance with the
\n definition of Feehold Compensation.<\/p>\n
(29) “City Council” means the Detroit City Council.<\/p>\n
(30) “Closing Certificates” means the certificates to be
\n delivered by Developer in the form as attached hereto as Exhibit
\n ——-
\n 1.1(a)(30).
\n ———-<\/p>\n
(31) “Closing Date” means the date on which all of the conditions
\n set forth in Section 2.4(a)(1) through 2.4(a)(14) are satisfied and\/or
\n ————————————
\n waived.<\/p>\n
(32) “Commencement Date” means the date of commencement of the
\n Work.<\/p>\n
(33) “Completion,” “Completed” or “Substantial Completion” means
\n for the Casino Complex, the completion of the Work, as evidenced by the
\n issuance of a temporary certificate of occupancy by the appropriate
\n Governmental Authority for all Components to which a certificate of
\n occupancy would apply, and that the parking structure and not less than
\n ninety percent (90%) of the gaming area, ninety percent (90%) of the hotel
\n rooms, and fifty percent (50%) of the retail floor space and fifty percent
\n (50%) of the restaurant floor space are open to the public for their
\n intended use (and\/or in the case of the retail and restaurant floor spaces,
\n are completed as shells and available for leasing).<\/p>\n
5<\/p>\n
(34) “Completion Date” means the date on which Completion occurs.<\/p>\n
(35) “Component” means, with respect to the Casino Complex, any
\n of the following: the hotel; Casino; restaurants; meeting and assembly
\n space; retail space; entertainment and recreational facilities; parking;
\n private bus, limousine and taxi parking and staging areas; the other
\n facilities described on Exhibit 8.1(i); and such other facilities that may
\n ————–
\n be added as Components by amendment to this Agreement.<\/p>\n
(36) “Condemnation” means a taking of all or any part of the
\n Project Premises by eminent domain, condemnation, compulsory acquisition or
\n similar proceeding by a competent authority for a public or quasi-public
\n use or purpose, other than in connection with the Resolution of Necessity.<\/p>\n
(37) “Construction Documents” means the drawings and
\n specifications, including Addenda and change orders, to be prepared by the
\n Architect(s) for the construction of the Casino Complex or the Temporary
\n Casino, as the context requires, which shall be in sufficient detail for
\n review by the appropriate Governmental Authority as necessary for the
\n issuance of a building permit and for review by the EDC as required in this
\n Agreement.<\/p>\n
(38) “Consultants” means the Architect, engineers, planners and
\n other consultants retained by Developer to perform the Design Services, but
\n excluding any Contractor or subcontractor.<\/p>\n
(39) “Contractor” means one or more firms licensed as a
\n contractor in the State, City or County as required by applicable law,
\n bonded to the extent required by applicable law and hired by Developer
\n pursuant to a Contractor Agreement or by a Contractor pursuant to a
\n subcontract, to construct all or part of the Development.<\/p>\n
(40) “Contractor Agreement” means an agreement between Developer
\n and a Contractor or an agreement between a Contractor and a subcontractor
\n for construction of all or part of the Development.<\/p>\n
(41) “Control(s)” or “Controlled” means the possession, direct or
\n indirect, of the power to direct or cause the direction of the management
\n and policies of a Person, whether through the ownership of voting
\n securities, by contract or otherwise, as such terms are used by and
\n interpreted under federal securities laws, rules and regulations.<\/p>\n
(42) “Conveyance Agreement” means the agreement to be entered
\n into by Developer, City and EDC for the purchase of the Project Premises by
\n the Developer, in substantially the same form as attached hereto as Exhibit
\n ——-
\n 1.1(a)(42); provided, however, that the parties acknowledge certain
\n ———
\n practical issues with Section 3.03 thereof and shall negotiate such changes
\n ————
\n as may be appropriate for the parties to realize the benefits thereof.<\/p>\n
6<\/p>\n
(43) “County” means Wayne County, Michigan.<\/p>\n
(44) “Covered Components” means the Casino, hotel and parking
\n Components.<\/p>\n
(45) “Debt Service” means, as of the last day of any fiscal
\n quarter of Developer, required payments of all principal and interest
\n on all Indebtedness for the most recent four fiscal quarters of
\n Developer ended on that date.<\/p>\n
(46) “Debt Service Coverage Ratio” means, as of the last day of
\n each fiscal quarter of Developer, the ratio of (i) Annualized Cash
\n Flow as of that date to (ii) Debt Service as of that date.<\/p>\n
(47) “Default Rate” means a rate of interest at all times equal
\n to the greater of (i) the rate of interest announced from time to time
\n by Comerica Bank, or its successors (“Comerica”), at its City office,
\n as its prime, reference or corporate base rate of interest, or if
\n Comerica is no longer in business in the City or no longer publishes a
\n prime, reference or corporate base rate of interest, then the prime,
\n reference or corporate base rate of interest announced from time to
\n time by such local bank having from time to time the largest capital
\n surplus, plus four percent (4%) per annum or (ii) twelve percent (12%)
\n per annum, provided, however, the Default Rate shall not exceed the
\n maximum rate allowed by applicable law.<\/p>\n
(48) “Design Development Documents” means the intermediate level
\n plans, drawings and specifications for the Casino Complex to be
\n prepared by the Architect(s) and other Consultants that set forth the
\n requirements for the construction of the Casino Complex in sufficient
\n detail to establish the size and character of the Casino Complex,
\n including architectural, structural, mechanical and electrical
\n systems, materials and other elements.<\/p>\n
(49) “Design Documents” means, collectively, as applicable, the
\n Schematic Design Documents, the Design Development Documents, the
\n Construction Documents and Temporary Casino Design Documents.<\/p>\n
(50) “Design Services” means those services to be provided by the
\n Architects and other Consultants in connection with the design of the
\n Casino Complex and the Temporary Casino and the periodic inspections,
\n reviews, approvals, disapprovals of the Work and any other services
\n customarily performed by an architect or design consultants.<\/p>\n
(51) “Detroit-Based Business” means that term as defined in
\n Chapter 18 of the 1984 Detroit City Code.<\/p>\n
(52) “Detroit Resident Business” means any business which employs
\n at least fifty-one (51%) percent Detroit residents. An individual
\n employee will be considered a Detroit resident once the business has
\n presented proof of such individual’s <\/p>\n
7<\/p>\n
payment of the City of Detroit Resident Income Tax in the previous
\n taxable year, or proof that the individual is now subject to payment
\n of Detroit Resident Income Tax. Additionally, to qualify as a Detroit
\n Resident Business, the firm or company must have at least four (4)
\n employees.<\/p>\n
(53) “Developer” means MGM Grand Detroit, LLC, a Delaware limited
\n liability company, having its principal place of business in the
\n State, and its successors and assigns as may be permitted hereunder.<\/p>\n
(54) “Developer’s Representative” means the Person employed or
\n retained by Developer to be its duly designated, official and
\n authorized representative and to represent Developer in all matters
\n pertaining to this Agreement.<\/p>\n
(55) “Development” means the Project Premises and the
\n Improvements, and\/or, as applicable, the Temporary Casino Site.<\/p>\n
(56) “Development Agreement” or “Agreement” means this
\n Development Agreement including all exhibits hereto, as the same may
\n be amended, modified, restated or supplemented from time to time.<\/p>\n
(57) “Development Process Costs” means, to the extent not
\n otherwise payable by Developer hereunder, the aggregate amount of any
\n and all costs and expenses in good faith paid, or incurred by, City
\n and\/or EDC to third parties (which aggregate amount is reduced by the
\n Two Million Three Hundred Thousand Dollars ($2,300,000) already
\n received by the City in connection with the RFP\/Q process), in
\n connection with the Land-Based Casino Developments, beginning with the
\n planning and preparation of the RFP\/Q including, without limitation,
\n (i) as and to the extent set forth in Section 6.2(a), the services of
\n ————–
\n the PM, the PM’s staff and the cost of a field office; outside
\n counsel; consulting engineers; relocation consultants; urban planners;
\n financial advisors; and accountants; and (ii) any and all title
\n charges, survey and appraisal costs. Development Process Costs do not
\n include (x) Infrastructure Improvement costs; (y) Feehold
\n Compensation; (z) salaries, overhead and other costs related to
\n municipal or EDC employees performing their normal functions, except
\n as and to the extent set forth in Section 6.2(a)(1).
\n —————– <\/p>\n
(58) “Deviation” means any deviation prior to Completion from the
\n Schematic Design Documents.<\/p>\n
(59) “EBITDA” means Developer’s (i) earnings before (ii) pre-
\n opening expenses, interest, taxes, depreciation and amortization each
\n of which elements shall be determined in accordance with GAAP,
\n consistently applied.<\/p>\n
(60) “EDC” means The Economic Development Corporation of the City
\n of Detroit, a Michigan public body corporate.<\/p>\n
8<\/p>\n
(61) “EDC Plan” means a plan setting forth the information
\n required by Section 8 of the Economic Development Corporation Act, MCL
\n 125.1601, et seq. including but not limited to information regarding
\n the location and extent of existing streets, the location, extent,
\n character and estimated cost of improvements for the project area, an
\n estimate of the number of persons that will be displaced, a statement
\n of the proposed method of financing the project, and a description of
\n the portions of the project area which will be sold, donated or
\n exchanged to or from the City.<\/p>\n
(62) “Effective Date” means the date on which all of the
\n following have been accomplished: the Agreement has been executed by
\n all parties hereto and the City Council has duly approved and
\n certified the last of the following: (i) this Agreement; and (ii) the
\n development agreements of each of the Other Land-Based Casino
\n Developers.<\/p>\n
(63) “Environmental Claim” means any demand, cause of action,
\n administrative, civil or criminal proceeding arising under
\n Environmental Law and the results thereof for (i) damages (actual or
\n punitive), losses, injuries to person or property, damages to natural
\n resources, fines, penalties, expenses, liabilities, interest,
\n contribution or settlement (including, without limitation, attorneys’
\n fees, court costs and disbursements), (ii) the costs of site
\n investigations, feasibility studies, information requests, health or
\n risk assessments, medical monitoring or Response actions, and (iii)
\n enforcing insurance, contribution, or indemnification agreements.<\/p>\n
(64) “Environmental Law” means all federal, state and local
\n statutes, ordinances, regulations and rules relating to environmental
\n quality, health, safety, contamination and clean-up, including,
\n without limitation, the Clean Air Act, 42 U.S.C. Section 7401 et seq.;
\n the Clean Water Act, 33 U.S.C. Section 1251 et seq., and the Water
\n Quality Act of 1987; the Federal Insecticide, Fungicide, and
\n Rodenticide Act (“FIFRA”), 7 U.S.C. Section 136 et seq.; the Marine
\n Protection, Research, and Sanctuaries Act, 33 U.S.C. Section 1401 et
\n seq.; the National Environmental Policy Act, 42 U.S.C. Section 4321 et
\n seq.; the Occupational Safety and Health Act, 29 U.S.C. Section 651 et
\n seq.; the Resource Conservation and Recovery Act (“RCRA”), 42 U.S.C.
\n Section 6901 et seq., as amended by the Hazardous and Solid Waste
\n Amendments of 1984; the Safe Drinking Water Act, 42 U.S.C. Section
\n 300f et seq.; the Comprehensive Environmental Response, Compensation
\n and Liability Act (“CERCLA”), 42 U.S.C. Section 9601 et seq., as
\n amended by the Superfund Amendments and Reauthorization Act, the
\n Emergency Planning and Community Right-to-Know Act, and Radon Gas and
\n Indoor Air Quality Research Act; the Toxic Substances Control Act
\n (“TSCA”), 15 U.S.C. Section 2601 et seq.; the Federal Hazardous
\n Materials Transportation Act, 49 U.S.C. Section 1801 et seq.; the
\n Atomic Energy Act, 42 U.S.C. Section 2011 et seq.; the Nuclear Waste
\n Policy Act of 1982, 42 U.S.C. Section 10101 et seq.; and the Michigan
\n Natural Resources and Environmental Protection Act (“NREPA”), MCL
\n 324.3101-.21551, with implementing regulations and to the extent
\n legally enforceable, guidelines. Environmental Laws shall also
\n include all state, regional, county, municipal and other local laws,
\n regulations, rules <\/p>\n
9<\/p>\n
and ordinances insofar as they purport to regulate human health, the
\n environment or Hazardous Materials.<\/p>\n
(65) “Equal Opportunity Employment Plan” means a voluntary plan
\n for the employment of women and Minorities in the Casino Complex and
\n in the construction of the Casino Complex.<\/p>\n
(66) “Event of Default” shall have the meaning ascribed to it in<\/p>\n
Section 10.1.
\n ———— <\/p>\n
(67) “Execution Date” means March 12, 1998.<\/p>\n
(68) “Exhibits” means those agreements, diagrams, drawings,
\n specifications, instruments, forms of instruments, and other documents
\n attached hereto on the date hereof or added to this Agreement and
\n designated as exhibits to, and incorporated in and made a part of,
\n this Agreement.<\/p>\n
(69) “Feehold Compensation” means the (i) aggregate amount of any
\n and all costs, expenses and relocation payments in good faith paid, or
\n incurred by, City and\/or EDC, excluding the cost of any land and any
\n improvements thereon, to third parties (i.e., “soft costs”) in
\n connection with the acquisition, purchase, ownership, financing and
\n disposition of all or any part of the Casino Area and the Public Land;
\n and (ii) cost of acquiring the Casino Area, Public Land and any
\n improvements thereon at their fair market value determined by
\n appraisal, subject to Section 2.9. Feehold Compensation does not
\n ———–
\n include (x) Development Process Costs, (y) the cost of any land within
\n the Public Land area owned by the City prior to the Execution Date,
\n including without limitation Chene Park and St. Aubin marina; or (z)
\n the cost of any Response with respect to the Public Land. Vacated
\n streets and sidewalks shall be deemed to be included in the parcels to
\n which they are appurtenant and no Feehold Compensation shall be
\n payable with respect thereto.<\/p>\n
(70) “Finance Affiliate” means any Affiliate created to
\n effectuate all or any portion of the Initial Financing.<\/p>\n
(71) “Financial Statements” means a balance sheet and related
\n statements of income and cash flows of Developer.<\/p>\n
(72) “Financing” means the act, process or an instance of
\n obtaining funds for the Development, whether secured or unsecured,
\n including but not limited to (i) issuing securities; (ii) drawing upon
\n any existing or new credit facility; or (iii) contributions to capital
\n by any Person.<\/p>\n
(73) “Finish Work” refers to the finishes which create the
\n internal and external appearance of the Casino Complex and\/or the
\n Temporary Casino, as the case may be.<\/p>\n
10<\/p>\n
(74) “First Class Casino Complex Standards” means the standards
\n of quality established and maintained on the Effective Date at MGM
\n Grand Hotel and Casino, Las Vegas, Nevada, taken as a whole; provided
\n however, for the Temporary Casino due allowances shall be made to take
\n into account the temporary nature of the facility and the fact the
\n facility was not originally designed to be a casino.<\/p>\n
(75) “First Mortgage” means the first priority Mortgage.<\/p>\n
(76) “First Mortgagee” means the holder of the First Mortgage.<\/p>\n
(77) “Fiscal Year” means the fiscal year that ends on the last
\n day of the fiscal year of the Developer. The first Fiscal Year shall
\n be the period commencing on the Effective Date and ending on the last
\n day of the fiscal year of the Developer in which the Effective Date
\n occurs. The term “Full Fiscal Year” means any Fiscal Year containing
\n not fewer than three hundred sixty-five (365) days. The partial Fiscal
\n Year commencing after the end of the last Full Fiscal Year and ending
\n with the termination of this Agreement shall constitute a separate
\n Fiscal Year.<\/p>\n
(78) “Force Majeure” means those events described in Section
\n ——-
\n 12.1.
\n —-<\/p>\n
(79) “GAAP” means generally accepted accounting principles set
\n forth in the opinions and pronouncements of the Accounting Principles
\n Board and the American Institute of Certified Public Accountants and
\n statements and pronouncements of the Financial Accounting Standards
\n Board or in such other statements by such other entity as may be
\n approved by a significant segment of the accounting profession for use
\n in the United States, which are applicable to the circumstances as of
\n the date of determination.<\/p>\n
(80) “Gaming Authorities” means all agencies, authorities and
\n instrumentalities of the City, the State or the United States of
\n America, or any subdivision thereof, having jurisdiction over the
\n gaming or related activities at the Casino, including but not limited
\n to the Board, or their respective successors.<\/p>\n
(81) “Governmental Authority” or “Governmental Authorities” means
\n any federal, state, county or municipal governmental authority,
\n including all executive, legislative, judicial and administrative
\n departments and bodies thereof (including, without limitation, any
\n Gaming Authority) having jurisdiction over the Developer and\/or the
\n Development.<\/p>\n
(82) “Governmental Requirements” means all laws, ordinances,
\n statutes, executive orders, rules, zoning requirements and agreements
\n of any Governmental Authority that are applicable to the acquisition,
\n remediation, renovation, demolition, development, construction and
\n operation of the Development including, without limitation, all
\n required permits, approvals and any rules, guidelines or restrictions
\n enacted or imposed <\/p>\n
11<\/p>\n
by Governmental Authorities, but only to the extent that such laws,
\n ordinances, statutes, executive orders, zoning requirements,
\n agreements, permits, approvals, rules, guidelines and restrictions are
\n valid and binding on Developer and Developer would be required to
\n comply with the same without regard to this Agreement.<\/p>\n
(83) “Guaranty and Keep Well Agreement” means that certain
\n agreement substantially in the same form as attached hereto as Exhibit
\n ——-
\n 1.1(a)(83).
\n ———- <\/p>\n
(84) “Hazardous Materials” means the following, including
\n mixtures thereof: any hazardous substance, pollutant, contaminant,
\n waste, by-product, or constituent regulated under CERCLA; the Michigan
\n Natural Resources and Environmental Protection Act, MCL 324.101-
\n .21551; oil and petroleum products, natural gas liquids, liquefied
\n natural gas and synthetic gas usable for fuel; pesticides regulated
\n under the FIFRA; asbestos and asbestos-containing materials,
\n polychlorinated biphenyls and other substances regulated under the
\n TSCA; source material, special nuclear material, by-product material
\n and any other radioactive materials or radioactive wastes, however
\n produced, regulated under the Atomic Energy Act or the Nuclear Waste
\n Policy Act; chemicals subject to the OSHA Hazard Communication
\n Standard, 29 C.F.R. (S)1910.1200 et seq.; solid wastes whether or not
\n hazardous within the meaning of RCRA; and any other hazardous
\n substance, pollutant or contaminant regulated under any other
\n Environmental Law.<\/p>\n
(85) “Improvements” means all buildings, building additions,
\n structures, roads, roadways, mechanical devices, infrastructure
\n improvements (including without limitation, all water and sewer mains,
\n electrical transmission conduits and equipment and other utility
\n facilities not owned by public utilities or that are the obligation or
\n responsibility of a quasi-public or private utility), landscaping,
\n facilities and appurtenances constructed and situated now or at
\n anytime hereafter upon the Project Premises and the Temporary Casino
\n Site.<\/p>\n
(86) “Indebtedness” means, without duplication (i) all
\n obligations, debts, or liabilities of Developer for borrowed money
\n which in accordance with GAAP would be shown on a balance sheet of
\n Developer as a liability; (ii) all obligations, debts or liabilities
\n for the deferred purchase price of property or services secured by any
\n lien on any property owned by Developer whether or not such obligation
\n has been assumed; and (iii) all rental obligations under leases
\n required to be capitalized under GAAP.<\/p>\n
(87) “Infrastructure Improvements” means those matters set forth
\n on Schedule B, to be provided by City pursuant to Section 2.18,
\n ————
\n comprising streets, roads, roadways and other transportation and
\n roadway improvements, including, without limitation, traffic
\n signalization and intersection improvements; sidewalks and curbs;
\n water mains or lines; storm and sanitary sewers and drainage
\n improvements; electrical transmission conduits and equipment and other
\n utility facilities; the foregoing of which are located off-site (i.e.,
\n outside of, and leading to, the Development) and which in the City’s
\n good faith judgment are necessary to operate the Development or to
\n mitigate or<\/p>\n
12<\/p>\n
reduce the impact of the Development on existing infrastructure
\n improvements. In determining whether the City is exercising good faith
\n judgment, the City shall consider, among other relevant matters: (x)
\n the City’s overall policies and practices concerning infrastructure
\n (y) available cost effective alternatives and (z) the best interests
\n of the City. For the avoidance of doubt: (i) an off-site improvement
\n shall be considered an Infrastructure Improvement if but for
\n construction of the Casino Complex such off-site improvement would not
\n have been required by City as of the Effective Date; (ii)
\n Infrastructure Improvements do not include maintenance or repair of
\n existing facilities; and (iii) subject to Section 2.18, under no
\n ————
\n circumstances shall City and\/or EDC be responsible to pay for any
\n Infrastructure Improvements.<\/p>\n
(88) “Initial Financing” has the meaning set forth in Section
\n ——-
\n 3.1.
\n —<\/p>\n
(89) “Interior Leasable Space” means the floor area located in
\n the Casino Complex available for lease to third parties for retail or
\n service use.<\/p>\n
(90) “Land-Based Casino Developments” means the Development and
\n the other casino projects being developed in the City by the Other
\n Land-Based Casino Developers.<\/p>\n
(91) “Leverage Ratio” means Indebtedness divided by Adjusted
\n Equity.<\/p>\n
(92) “Loan Default” means an event of default or default or event
\n or condition which, with respect to Developer or its Finance Affiliate
\n without further notice or passage of time, would entitle a mortgagee
\n to exercise the right to foreclose upon, acquire, possess or obtain
\n the appointment of a receiver or other similar trustee or officer over
\n all or a part of Developer’s interest in the Development.<\/p>\n
(93) “Local Partner(s)” means any Person who directly or
\n indirectly through an entity or series of entities owns an interest in
\n Partners Detroit, LLC.<\/p>\n
(94) “Major Condemnation” means a Condemnation either (i) of the
\n entire Development, or (ii) of a portion of the Development if, as a
\n result of the Condemnation, it would be imprudent or unreasonable to
\n continue to operate the Casino Complex even after making all
\n reasonable repairs and restorations.<\/p>\n
(95) “Manage” means to generate, manufacture, process, treat,
\n store, use, re-use, refine, recycle, reclaim, blend or burn for energy
\n recovery, incinerate, accumulate speculatively, transport, transfer,
\n dispose of or abandon Hazardous Materials.<\/p>\n
(96) “Mandatory Sale” shall have the meaning ascribed to it in<\/p>\n
Section 10.2(e).
\n ————— <\/p>\n
(97) “Material Alteration” means any Alteration or related series
\n of Alterations that: (i) materially changes the nature of the use of
\n the Covered Components <\/p>\n
13<\/p>\n
and the retail Component, taken as a whole (provided that in making
\n such determination, up to ten percent (10%) of the retail Component
\n floor space shall be excluded); (ii) materially diminishes the
\n exterior quality of the Development taken as a whole, or materially
\n affects the exterior appearance or materially affects the exterior
\n signage of the Casino Complex; or (iii) subject to Section 7.11,
\n ————
\n increases or decreases the gaming floor area of the Casino.<\/p>\n
(98) “Material Deviation” is a Deviation that: (i) delays the
\n Agreed Upon Opening Date in excess of thirty (30) Business Days; (ii)
\n materially changes the nature of the use of any Component; (iii)
\n materially diminishes the overall quality or size of a Component
\n (measured, in the case of size, by a reduction of more than ten
\n percent (10%) in the number of rooms, number of parking spaces,
\n aggregate square footage (other than gaming floor area), or other
\n appropriate measure); (iv) reduces the budget (as then approved) for
\n the Casino Complex by more than five percent (5%) of Total Cost; or
\n (v) subject to Section 4.6, increases or decreases the gaming floor
\n ———–
\n area of the Casino.<\/p>\n
(99) “Mayor” means the duly elected Mayor of the City.<\/p>\n
(100) “Memorandum of Agreement” shall mean a memorandum of this
\n Agreement in recordable form and otherwise satisfactory in form and
\n substance to City, EDC and Developer in the exercise of reasonable
\n judgment.<\/p>\n
(101) “Minor Condemnation” means a Condemnation that is not a
\n Major Condemnation.<\/p>\n
(102) “Minority” means that term as defined in Section 18-5-31 of
\n Chapter 18 of the 1984 Detroit City Code.<\/p>\n
(103) “Mortgage” means a mortgage on all or any part of
\n Developer’s interest in the Development.<\/p>\n
(104) “Mortgagee” means the holder from time to time of a
\n mortgage on all or any part of Developer’s interest in the
\n Development.<\/p>\n
(105) “Municipal Services Fee” shall have the same meaning as
\n ascribed to it in the Act.<\/p>\n
(106) “Net Worth” means the members’ equity as reflected on
\n Developer’s balance sheet, determined in accordance with GAAP.<\/p>\n
(107) “Non-Material Alteration” means any Alteration which is not
\n a Material Alteration.<\/p>\n
(108) “Non-Material Deviation” means any Deviation which is not a
\n Material Deviation.<\/p>\n
14<\/p>\n
(109) “Ordinance” means ordinance number 17-97, Chapter 18 of the
\n 1984 Detroit City Code, as amended from time to time, together with
\n all rules and regulations issued in connection therewith or
\n promulgated thereunder.<\/p>\n
(110) “Other Land-Based Casino Developers” means Detroit
\n Entertainment, LLC and Greektown Casino, L.L.C., each a Michigan
\n limited liability company.<\/p>\n
(111) “Outside Submission Date” means the first anniversary of
\n the Closing Date.<\/p>\n
(112) “Parent Company” means MGM Grand, Inc., and its successors
\n and assigns.<\/p>\n
(113) “Performance Guaranty” means a guarantee of performance of
\n Developer’s obligations under this Agreement in substantially the same
\n form as attached hereto as Exhibit 1.1(a)(113).
\n ——————- <\/p>\n
(114) “Performance Threshold” means EBITDA, as reduced by
\n interest expense and scheduled principal payments (other than balloon
\n payments on maturity to the extent refinanced), of at least Twenty-Two
\n Million Five Hundred Thousand Dollars ($22,500,000) for the most
\n recent trailing twelve (12) month period, provided that the first
\n trailing twelve (12) month period shall commence with the thirteenth
\n (13th) month after the Completion Date and shall end with the twenty-
\n fourth (24th) month after the Completion Date. For the avoidance of
\n doubt, Developer is deemed to be in compliance with the Performance
\n Threshold during the period commencing with the Effective Date through
\n and including the first full twenty-four (24) months following
\n Completion Date.<\/p>\n
(115) “Permits” means all licenses, permits, approvals, consents
\n and authorizations that Developer is required to obtain from any
\n Governmental Authority to perform and carry out its obligations under
\n this Agreement including but not limited to permits and licenses
\n necessary to demolish, build, open, operate and occupy the
\n Development.<\/p>\n
(116) “Permitted Affiliate Payments” means (i) payments which
\n represent compensation for goods and services purchased or acquired
\n from an Affiliate in the ordinary course of business; (ii)
\n distributions required under Developer’s operating agreement to
\n satisfy tax payments; (iii) payments of interest or principal to any
\n Affiliate of Developer, with respect to money borrowed from such
\n Affiliate provided no acceleration of such payments shall be a
\n Permitted Affiliate Payment unless as and to the extent loans to such
\n Affiliate from third parties have been accelerated; (iv) payments to
\n any Casino Manager which are used by such Casino Manager to pay
\n compensation and benefits to its employees; (v) (1) at such times as
\n Developer meets or exceeds the Performance Threshold, or (2) so long
\n as a Performance Guaranty from an Acceptable <\/p>\n
15<\/p>\n
Guarantor remains in full force and effect, payments for services
\n purchased or acquired from an Affiliate in the ordinary course of
\n business, including without limitation management fees, guaranty fees,
\n and compensation for the use of intellectual property; and (vi)
\n distributions to Developer’s members in an amount equal to, and to be
\n used solely for the purpose of paying, principal and interest on money
\n borrowed to make capital contributions to Developer.<\/p>\n
(117) “Person” means any individual, partnership, corporation,
\n limited liability company, association, unincorporated organization,
\n trust or other entity, including but not limited to, any government or
\n agency or subdivision thereof, and the heirs, executors,
\n administrators, legal representatives, successor and assigns of such
\n Person where the context so permits.<\/p>\n
(118) “Pro Rata Share” means one-third, provided that if City and
\n EDC are notified in a writing signed by the Developer and the Other
\n Land-Based Casino Developers that the Pro Rata Share of Developer is a
\n specified percentage, then the Pro Rata Share of Developer shall equal
\n such specified percentage so long as the sum of the specified
\n percentages of Developer and the Other Land-Based Casino Developers
\n equals one hundred percent (100%).<\/p>\n
(119) “Program Manager” or “PM” means the Person or Persons
\n designated by and retained by the EDC to be its authorized
\n representative, to represent EDC in all construction matters
\n pertaining to this Agreement and to facilitate the construction
\n process of the Development.<\/p>\n
(120) “Project Site” means the Project Premises, the staging
\n areas, and temporary construction easements (if any), provided for
\n construction of the Development.<\/p>\n
(121) “Project Premises” means the parcel or parcels of real
\n estate to be conveyed to Developer pursuant to the Conveyance
\n Agreement, together with all rights, covenants, rights of way and
\n appurtenances belonging or in anywise appertaining thereto.<\/p>\n
(122) “Proceeds” means the compensation paid by the condemning
\n authority to the City and\/or Developer in connection with a
\n Condemnation, whether recovered through litigation or otherwise, but
\n excluding any compensation paid in connection with a temporary taking.<\/p>\n
(123) “Public Land” means the real estate described on Exhibit
\n ——-
\n 1.1(a)(19) attached hereto, together with all rights, covenants,
\n ———-
\n rights of way and appurtenances belonging or in anywise appertaining
\n thereto.<\/p>\n
(124) “Publicly Traded Corporation” shall have the same meaning
\n as defined in the Act.<\/p>\n
16<\/p>\n
(125) “Radius” means the geographic area encompassed by a circle
\n having a radius of one hundred fifty (150) miles and the intersection
\n of Woodward and State Fair as its center.<\/p>\n
(126) “Release or Released” means actual or threatened spilling,
\n leaking, pumping, pouring, emitting, emptying, discharging, injecting,
\n escaping, leaching, presence, dumping, migration from adjacent
\n property or disposing of Hazardous Materials into the environment, as
\n “environment” is defined by the Environmental Laws or the abandonment
\n or discarding of barrels, containers or other closed receptacles
\n containing a Hazardous Material.<\/p>\n
(127) “Resolution of Necessity” means a resolution of City
\n Council authorizing land acquisition in the project area as set forth
\n in the EDC Plan by or for the benefit of the public, the City and its
\n residents for the purposes set forth in PA 338 of 1974.<\/p>\n
(128) “Response or Respond” means action taken in compliance with
\n Environmental Laws to correct, remove, remediate, clean up, prevent,
\n mitigate, monitor, evaluate, investigate, halt, assess or abate a
\n Release and includes, but is not limited to evaluation, interim
\n response activity, remedial action, demolition or the taking of other
\n actions necessary to protect the public health, safety, welfare or the
\n environment or any natural resources.<\/p>\n
(129) “Restricted Party” has the meaning set forth in Section
\n ——-
\n 7.3.
\n —<\/p>\n
(130) “RFP\/Q” means the Phase I and Phase II Request for
\n Proposals and Qualifications issued by the City in connection with the
\n land-based casino development project for the City.<\/p>\n
(131) “Schematic Design Documents” means a site plan; a schematic
\n design establishing the general scope, conceptual design, and scale
\n and relationships among the Components; preliminary specifications,
\n specifically including quality of materials to be utilized in
\n construction of the exterior of the Casino Complex; and elevations
\n prepared by the Architect(s).<\/p>\n
(132) “Secured Debt” means a debt of Developer secured by a
\n Mortgage.<\/p>\n
(133) “Site Preparation Work” means the following actions with
\n respect to the Project Premises or the Temporary Casino Site, as the
\n case may be: (a) demolition and removal of structures; (b) demolition
\n and removal of surface paving and sidewalks; (c) removal of
\n underground and overhead utility facilities, and capping of any
\n remaining lines as appropriate (including without limitation the
\n removal or capping of all sanitary sewer, storm and drainage
\n facilities); (d) removal of non-soil material, rubble and debris
\n resulting from the foregoing demolition activities and legal disposal
\n at landfills authorized by the State to accept such materials; (e)
\n removal and abatement, to the extent required <\/p>\n
17<\/p>\n
by controlling applicable law, of all toxic or hazardous substances,
\n materials or wastes, including contaminated soil, if any disclosed by
\n any environmental assessment; and (f) grading of the Project Premises
\n to be level with the adjacent property line grades and proper
\n compaction of all soils, including backfill.<\/p>\n
(134) “Small Business Concern” means that term as defined in
\n Section 18-5-1 of the 1984 Detroit City Code.<\/p>\n
(135) “Space Lease” means any sublease, franchise, license or
\n other agreement that would permit or allow a Person to use and\/or
\n maintain space as a tenant in or on the Development.<\/p>\n
(136) “Space Tenant” means a tenant under a Space Lease.<\/p>\n
(137) “State” means the State of Michigan.<\/p>\n
(138) “Submission Date” means the date on which the Building
\n Permit Submission is made.<\/p>\n
(139) “Suitable Lender” means:<\/p>\n
(A) any insurance company as defined in Section 2(13) of
\n the Securities Act of 1933;<\/p>\n
(B) any investment company registered under the Investment
\n Company Act of 1940;<\/p>\n
(C) any business development company as defined in Section
\n 2(a)(48) of the Investment Company Act of 1940;<\/p>\n
(D) any small business investment company licensed by the
\n U.S. Small Business Administration under Section 301(c) or (d) of
\n the Small Business Investment Act of 1958;<\/p>\n
(E) any plan established and maintained by a state, its
\n political subdivisions, or any agency or instrumentality of a
\n state or its political subdivisions, for the benefit of its
\n employees;<\/p>\n
(F) any employee benefit plan within the meaning of Title
\n I of the Employee Retirement Income Security Act of 1974;<\/p>\n
(G) any trust fund whose trustee is a bank or trust
\n company and whose participants are exclusively plans of the types
\n identified in paragraph (E) or (F) of this section;<\/p>\n
18<\/p>\n
(H) any business development company as defined in Section
\n 202(a)(22) of the Investment Advisers Act of 1940;<\/p>\n
(I) any investment adviser registered under the Investment
\n Advisers Act of 1940;<\/p>\n
(J) any dealer registered pursuant to Section 15 of the
\n Securities and Exchange Act of 1934 or its Affiliate;<\/p>\n
(K) any entity, all of the equity owners of which are, or
\n all debt securities of which are owned by, (i) “qualified
\n institutional buyers” as defined in Rule 144A under the
\n Securities Act of 1933, as amended (the “Securities Act”) acting
\n for their own account or the accounts of other qualified
\n institutional buyers, and\/or (ii) parties who have acquired such
\n equity interests or debt securities pursuant to Regulation S of
\n the Securities Act or pursuant to a public offering registered
\n pursuant to the Securities Act;<\/p>\n
(L) any bank as defined in Section 3(a)(2) of the
\n Securities Act of 1933, any savings and loan association or other
\n institution as referenced in Section 3(a)(5)(A) of the Securities
\n Act of 1933, or any foreign bank or savings and loan association
\n or equivalent institution;<\/p>\n
(M) any investor or group of investors purchasing debt
\n securities of Developer who are (i) purchasing such debt
\n securities of Developer in any public offering registered
\n pursuant to the Securities Act; (ii) “qualified institutional
\n buyers” (as defined in Rule 144A under the Securities Act);
\n and\/or (iii) purchasing such debt securities of Developer
\n pursuant to Regulation S of the Securities Act;<\/p>\n
(N) Parent Company or any Affiliate of Parent Company;<\/p>\n
(O) any Publicly Traded Corporation whose securities are
\n traded on a national exchange or are included for quotation on
\n the NASDAQ Stock Market; and<\/p>\n
(P) any other lender approved by City in the exercise of
\n its reasonable judgment.<\/p>\n
(140) Temporary Casino” shall mean that facility in which Casino
\n Gaming Operations shall be conducted by Developer until the Completion
\n Date in accordance with the provisions of Article XX.
\n ———- <\/p>\n
(141) Termination Date” means the date that this Agreement is
\n terminated pursuant to Section 10.3.
\n ———— <\/p>\n
19<\/p>\n
(142) “Total Cost” means all hard and soft costs and expenses of
\n Developer incurred through Completion for acquiring and developing the
\n Development (other than for the Temporary Casino), including without
\n limitation Developer’s Allocable Share of Development Process Costs; Pro
\n Rata Share of Feehold Compensation, Infrastructure Improvements and Site
\n Preparation Work; and for designing and constructing the Improvements,
\n including but not limited to, land acquisition costs for the Development
\n (other than for the Temporary Casino), payments under the Contractor
\n Agreement(s), payments under the Agreement, fees and expenses of the
\n Architect(s) and other Consultants, overhead, and costs of bonds, taxes,
\n insurance, permits, licenses and inspections, interest and other financing
\n costs, legal fees and expenses and pre-opening and related marketing or
\n advertising expenses.<\/p>\n
(143) “Transfer” means (i) any sale (including agreements to sell
\n on an installment basis), assignment, transfer, pledge, alienation,
\n hypothecation, merger, consolidation, reorganization, liquidation, or any
\n other disposition by operation of law or otherwise, and (ii) the creation
\n or issuance of new or additional interests in the ownership of any entity.<\/p>\n
(144) “Wagering Tax” shall have the same meaning as ascribed to
\n it in the Act.<\/p>\n
(145) “Work” means Site Preparation Work and\/or construction of
\n the Improvements in accordance with the Construction Documents and includes
\n labor, materials and equipment to be furnished by a Contractor or
\n subcontractor pursuant to a Contractor Agreement.<\/p>\n
(146) “Working Development Schedule” means the schedule to be
\n prepared by Developer outlining the events and estimated time periods
\n necessary for the completion of the Site Preparation Work and the
\n significant milestones for design, permitting, construction and Completion
\n of the Casino Complex, as modified from time to time.<\/p>\n
(b) Any other initially capitalized terms defined within the text of
\nthis Agreement shall have the meaning set forth therein for purposes of
\nthis Agreement.<\/p>\n
1.2 Interpretation. When a reference is made in this Agreement to an
\n ————–
\narticle, section, paragraph, clause, schedule or exhibit, such reference shall
\nbe deemed to be to this Agreement unless otherwise indicated. The headings
\ncontained herein and on any schedules and exhibits are for reference purposes
\nonly and shall not affect in any way the meaning or interpretation of this
\nAgreement or such schedules or exhibits. Words of the masculine gender shall be
\ndeemed and construed to include correlative words of the feminine and neuter
\ngenders. “Herein,” “hereby,” “hereunder,” “hereof,” “hereinbefore,”
\n“hereinafter” and other equivalent words refer to this Agreement and not solely
\nto the particular portion thereof in which any such word is used. Whenever the
\nwords “include”, “includes” or “including” are used in this Agreement, they
\nshall be deemed to be followed by the words “without limitation”.<\/p>\n
20<\/p>\n
1.3 Michigan Statutes. All references herein to Michigan statutes are to
\n —————–
\nthe Michigan Compiled Laws, as amended.<\/p>\n
ARTICLE II<\/p>\n
GENERAL PROVISIONS<\/p>\n
2.1 Purpose. The purpose of this Agreement is:
\n ——- <\/p>\n
(a) To set forth the relationship among Developer, City and EDC the
\nrespective duties, responsibilities and obligations of each and the procedures
\nto be followed relating to the design, construction and operation of the
\nDevelopment; and<\/p>\n
(b) To provide a means by which the Development can be designed,
\nconstructed and completed by Developer, with the cooperation of City and
\nEDC, and for the coordination of efforts on the part of each to ensure the
\ntimely and expedited construction and Completion of the Development.<\/p>\n
2.2 Findings. City and EDC do hereby ascertain, determine, declare and
\n ——–
\nfind that:<\/p>\n
(a) The Development will provide or preserve gainful employment for
\ncitizens of City, make a significant contribution to the economic growth of City
\nand serve a public purpose by, among other things, advancing economic
\nprosperity, helping to alleviate conditions of unemployment and underemployment
\nin the City and attracting new and improved commercial and industrial
\nenterprises to the City.<\/p>\n
(b) The Development is in the best interests of the City and
\naccomplishes the purposes of Act 338, Michigan Public Acts of 1974, as
\namended (“Act 338”).<\/p>\n
(c) The EDC is empowered under Act 338, to construct, acquire by gift
\nor purchase, reconstruct, improve, maintain or repair projects and acquire
\nnecessary lands for the site of a project, and to sell and to convey a project
\nor any part thereof for a price and at a time which EDC determines, and to lend,
\ngrant, transfer, or convey funds, all such powers being declared by Act 338 to
\nconstitute the performance of essential public purposes and functions for the
\nState and its municipalities.<\/p>\n
(d) The execution of this Agreement and the construction
\nimplementation of the Development will enhance the public benefit and welfare
\nand therefore constitute public purposes in that they prevent and combat
\ncommunity deterioration in the City; increase employment opportunities in the
\nCity; help to alleviate conditions of unemployment and\/or underemployment in the
\nCity; promote the location, relocation, expansion and retention of commercial
\nand industrial enterprises in the City; increase and promote tourism and enhance
\ntourist amenities in the City; and preserve and improve the aesthetic quality
\ninuring to the <\/p>\n
21<\/p>\n
economic health of the City. The above-cited items constitute important public
\nbenefits to City and EDC. Further, additional public benefits of this Agreement
\nand the construction of the Development consist of increased taxes and other
\nrevenues from the operation of the Development. Further, City hereby declares
\nand acknowledges that the entering into of this Agreement was done on a
\ncompetitive basis with a systematic evaluation of factors relating to the public
\nbenefit and welfare, and the public purposes, hereinabove described, all in
\naccordance with the Ordinance.<\/p>\n
2.3 Intent. It is the intent of the parties to this Agreement that:
\n —— <\/p>\n
(a) The Development is to be accomplished by Developer as provided
\nherein.<\/p>\n
(b) This Agreement sets forth the duties, obligations, rights and
\nresponsibilities of City, EDC and Developer with respect to the development,
\ndesign and construction of the Development and operation of the Casino Complex
\nand the Temporary Casino.<\/p>\n
2.4 Commencement of Rights and Obligations.
\n ————————————– <\/p>\n
(a) This Agreement shall confer no rights and impose no obligations
\nuntil the Effective Date. Notwithstanding the execution hereof and the
\noccurrence of the Effective Date, except as and to the extent set forth in
\n(i) Article I, (ii) Section 2.4, (iii) Section 2.5, (iv) Section 2.7, (v)
\n ——— ———– ———– ———–
\nSection 2.8, (vi) Section 2.10, (vii) Section 2.11, (viii) Section 2.17,
\n———– ———— ———— ——–
\n(ix) Article VIII, (x) Article IX, (xi) Article X, (xii) Article XIV,
\n ———— ———- ——— ———–
\n(xiii) Article XVIII, (xiv) Article XX and (xv) Article XXI, each to the
\n ————- ———- ———–
\nextent applicable, no right shall be conferred or obligation imposed, by or
\nunder this Agreement unless and until each of the following conditions has
\nbeen fully met:<\/p>\n
(1) The Board has issued its Certificate of Suitability pursuant
\n to the Act, granting to Developer the right to receive a Casino License
\n upon the conditions set forth in the Act and such Certificate of
\n Suitability contains only such other conditions as may be acceptable to
\n Developer in the exercise of its reasonable judgment.<\/p>\n
(2) The Developer has paid its Pro Rata Share of the Feehold
\n Compensation, less its Pro Rata Share of the City Contribution.<\/p>\n
(3) The Developer has furnished such documentation as City
\n reasonably requires to verify that the Initial Financing has been obtained
\n and is available for immediate disbursement or use.<\/p>\n
(4) The Developer, City and EDC have duly executed and delivered
\n the Conveyance Agreement; the Conveyance Agreement has been approved by
\n City Council; and the Developer, City and EDC have duly executed, delivered
\n and recorded the Memorandum of Agreement and Developer has acquired title
\n to the Project Premises subject to such Memorandum of Agreement.<\/p>\n
22<\/p>\n
(5) The Developer has delivered, and has caused Parent Company
\n to deliver, to the City and EDC an opinion of counsel in a form reasonably
\n satisfactory to City and EDC.<\/p>\n
(6) The City and EDC each have delivered to Developer an opinion
\n of counsel in a form reasonably satisfactory to Developer.<\/p>\n
(7) The Developer has paid to the City its Allocable Share of
\n the Development Process Costs then due.<\/p>\n
(8) The City Council has (x) vacated all streets, sidewalks and
\n other land, the use of which is dedicated to the public as set forth in the
\n EDC Plan; (y) approved all zoning changes necessary to allow Developer to
\n operate the Casino Complex; and (z) enacted an ordinance authorizing casino
\n gaming in the City.<\/p>\n
(9) There shall be no temporary restraining order, preliminary
\n injunction or permanent injunction enjoining the Developer from proceeding
\n to develop the Development.<\/p>\n
(10) The Developer has delivered to City and EDC the Guaranty and
\n Keep Well Agreement executed by an Acceptable Guarantor.<\/p>\n
(11) The Developer has delivered to City and EDC Closing
\n Certificates executed by Developer and an Acceptable Guarantor.<\/p>\n
(12) The Developer has delivered to City the executed agreement
\n of Parent Company, any Casino Manager and each Restricted Party required
\n under Section 2.14.
\n ———— <\/p>\n
(13) The Developer has delivered to City certificates showing
\n that Developer, any Acceptable Guarantor and any Casino Manager are in good
\n standing and qualified to do business in the State, if required under the
\n law of the State, dated no earlier than five (5) days prior to the Closing
\n Date.<\/p>\n
(14) The Developer has delivered to City copies of the
\n organizational documents of Developer, any Acceptable Guarantor and
\n each member of Developer, certified by an authorized officer of each
\n such respective entity as true and accurate as of the Closing Date.<\/p>\n
(b) The definition of Effective Date as provided for herein and in the
\ndevelopment agreements entered in by the Other Land-Based Casino Developers may
\nnot be modified except in an instrument executed by the City, EDC, Developer and
\nthe Other Land-Based Casino Developers. The Other Land-Based Casino Developers
\nare intended third party beneficiaries of this Section 2.4(b) and are entitled
\n ————–
\nto enforce it as a direct party hereto.<\/p>\n
23<\/p>\n
(c) Developer may waive, in whole or in part, any or all of those
\nconditions set forth in Sections 2.4(a)(6), (a)(8), or (a)(9) prior to the
\n ————————————-
\nsatisfaction of such condition. City may waive, in whole or in part, in
\nwriting any of those conditions set forth in Sections 2.4 (a)(2), (a)(5),
\n —————————-
\n(a)(11), (a)(l2), (a)(13) or (a)(14) prior to the satisfaction of such
\n————————————
\ncondition. Developer and City may mutually waive, in whole or in part, the
\nconditions set forth in Sections 2.4(a)(3) and (a)(4) prior to th
\n —————————–
\nsatisfaction of such condition. No waiver of any condition shall be
\neffective: (x) unless such waiver shall be in writing or (y) if the failure
\nto satisfy such condition would make performance of this Agreement illegal.<\/p>\n
(d) Notwithstanding anything to the contrary contained in this
\nAgreement, this Agreement shall automatically terminate if all of the
\nconditions set forth in Sections 2.4(a)(1) through 2.4(a)(14) above are
\n ————————————-
\nnot satisfied or waived on or before December 31, 1999.<\/p>\n
2.5 Conveyance of Project Premises to Developer.
\n ——————————————- <\/p>\n
(a) Provided that City is acquiring the Casino Area and Public Land
\npursuant to financing from such sources and on terms and conditions (other than
\namount) reasonably satisfactory to Developer and the Other Land-Based Casino
\nDevelopers and further provided that Developer’s right to approve such sources
\nand such terms and conditions shall expire if Developer shall fail to respond
\nwithin fifteen (15) Business Days of its receipt in writing of such sources and
\nsuch terms and conditions, City and EDC shall notify Developer of their desire
\nto enter into the Conveyance Agreement. Upon receipt of such notice, and
\nprovided that the proviso in the first sentence of Section 4.11 has been
\n ————
\nsatisfied, City, EDC and Developer shall promptly execute and deliver to each
\nother the Conveyance Agreement and submit the Conveyance Agreement to City
\nCouncil for approval.<\/p>\n
(b) Within five (5) Business Days following the approval of City
\nCouncil referred to in Section 2.5(a), Developer shall furnish EDC with a
\n ————–
\nletter of credit in an amount equal to its Pro Rata Share of Feehold
\nCompensation and in such form and upon such terms and conditions as are
\nreasonably necessary to allow City to acquire the Casino Area and the Public
\nLand.<\/p>\n
(c) If Developer breaches its obligations to acquire the Project
\nPremises pursuant to the Conveyance Agreement, City and EDC shall have the
\nright to terminate this Agreement.<\/p>\n
2.6 Compliance with Other Commitments.
\n ——————————— <\/p>\n
(a) Developer agrees that the Total Cost, exclusive of the Feehold
\nCompensation, shall not be less than Six Hundred Million Dollars
\n($600,000,000)<\/p>\n
(b) As set forth on Exhibit 8.1(g), Developer agrees to use
\n ————–
\ncommercially reasonable efforts to acquire all or some of its financing from a
\nDetroit-Based Business, a Detroit Resident Business and\/or a Small Business
\nConcern and\/or to utilize Detroit-based and\/or Minority-owned financial
\ninstitutions in serving Developer’s financial needs.<\/p>\n
24<\/p>\n
(c) Developer agrees, to the extent permitted by applicable law, to:<\/p>\n
(1) perform and comply in all material respects with the
\n commitments, promises and\/or undertakings set forth on Exhibits
\n ——–
\n 8.1(j), (m), (r) and (s);
\n ———————— <\/p>\n
(2) use good faith efforts to perform and comply in all material
\n respects with the commitments, promises and\/or undertakings set forth
\n on Exhibits 8.1(k), (l), (v), (x), (y), (z), (cc) and (dd);
\n ——————————————————- <\/p>\n
(3) use reasonable best efforts to perform and comply in all
\n material respects with the commitments, promises and\/or undertakings
\n set forth on Exhibits 8.1(p), (q), (u) and (ee), provided that
\n ———————————-
\n Developer’s obligations with respect to its commitments, promises and
\n undertakings set forth on Exhibit 8.1(q) are also subject to the
\n ————–
\n Developer’s obligations set forth in Sections 2.6(e), (h) and (i); and
\n —————————- <\/p>\n
(4) use commercially reasonable efforts to perform and comply in
\n all material respects with the commitments, promises and undertakings
\n set forth on Exhibits 8.1(n) and (w).
\n ———————– <\/p>\n
(d) Developer agrees that no fewer than three thousand three hundred
\n(3,300) full-time equivalent employees will be employed at the Casino Complex
\nimmediately following Completion, exclusive of construction workers, and
\nthereafter, subject to Section 7.17, will employ such number of employees as may
\n ————-
\nbe appropriate in the exercise of Developer’s reasonable judgment to operate the
\nCasino Complex in a manner consistent with First Class Casino Complex Standards
\nand in compliance with this Agreement.<\/p>\n
(e) Developer agrees to use reasonable best efforts to attain the
\ngoals of employment of Detroit residents set forth in Exhibit 8.1(q)
\n ————–
\nWhenever in this Agreement or the Exhibits, reference is made to “Detroit
\nresidents,” the first determination of whether an individual is a Detroit
\nresident shall be made on the Completion Date based on an individual’s residence
\non his or her date of hire. Subsequent to the Completion Date, the determination
\nof whether Developer has achieved its hiring goals with respect to Detroit
\nresidents shall be made on each anniversary of the Completion Date (each, a
\n“Determination Date”). Such goal shall be deemed met if on each Determination
\nDate Developer either (i) met its hiring goals for Detroit residents since the
\nlast Determination Date, based on an individual’s residence on his or her date
\nof hire or (ii) Developer then employs no fewer than the number of Detroit
\nresidents established by its hiring goal, based on each individual’s most
\ncurrent address on file with Developer.<\/p>\n
(f) Developer agrees to comply with all federal, state and local laws
\ngoverning equal employment opportunity.<\/p>\n
(g) The Developer agrees that it shall notify its Contractors and
\nConsultants of their obligations relative to non-discrimination under this
\nAgreement when soliciting same, shall include the provisions of Section
\n ——-
\n2.6(f) in each contract with its Contractors and Consultants
\n——
\n 25<\/p>\n
and require subcontract as well as provide the City and\/or EDC a copy of any
\nsuch subcontract upon request. Developer shall have no obligation to enforce
\nsuch provision if City is given the direct right to enforce such provision in
\nany contract or subcontract.<\/p>\n
(h) As set forth in Exhibit 8.1(q), Developer agrees to be committed
\n ————–
\nto affirmative action programs to increase the numbers of minority and women
\nemployees in the workforce of the Developer, including professional and
\nmanagement positions.<\/p>\n
(i) As set forth in Exhibit 8.1(q), Developer voluntarily commits to
\n ————–
\nhire contractors who agree to implement an Equal Opportunity Employment Plan
\nconforming to all applicable laws and consistent with Executive Order No. 22,
\ndated August 29, 1983. Developer shall notify its Contractors of their
\nobligations relative to implementing such an Equal Opportunity Employment Plan
\nand shall include such a provision in each contract with its Contractors and
\nrequire that its Contractors include such provision in any subcontract.
\nDeveloper will not, however, be in default under this Agreement if any
\ncontractor fails to comply with its agreement to implement its Equal Opportunity
\nEmployment Plan provided, however, the City is given the direct right to enforce
\nsuch provision in any contract or subcontract.<\/p>\n
(j) Developer shall use reasonable best efforts to ensure that at
\nleast thirty percent (30%) of aggregate amounts expended by Developer under
\ncontracts entered into by Developer for the construction of, or any material
\nadditions, improvements or modification to the Casino Complex shall be paid to
\nDetroit-Based Businesses, Detroit Resident Businesses, Small Business Concerns,
\nminority business concerns or women-owned businesses. As set forth in Exhibit
\n ——-
\n8.1(u), Developer agrees to use reasonable best efforts to purchase during each
\n——
\nFiscal Year at least thirty percent (30%) of the total dollar value of all
\npurchases of goods and services from Detroit-Based Businesses, Detroit Resident
\nBusinesses, Small Business Concerns, minority business concerns or women-owned
\nbusinesses.
\n (1) “Reasonable Best Efforts” to achieve the goals set forth in
\n this Section 2.6(j) may include, but are not to be limited to, the use
\n ————–
\n of Joint Venture arrangements; Mentor Ventures; outreach to Detroit,
\n minority and women business, trade and professional associations or
\n organizations; outreach to community organizations; and advertising through
\n media publications or other vehicles reasonably calculated to reach
\n Detroit, minority and women-owned businesses, including, but not limited
\n to, community newsletters.<\/p>\n
(2) “Joint Venture” as used in this Section 2.6(j) means a
\n ————–
\n combination of separate business persons or entities, one of which is a
\n Detroit-Based Business, Detroit Resident Business, Small Business Concern,
\n minority business concern or women-owned business, which has been created
\n to perform a specific contract, and in which one or more of the latter
\n business entities (a) shares in profits and losses, (b) is substantially
\n involved in all phases of the contract, including, but not limited to,
\n bidding and staffing; (c) provides a substantial portion of the total
\n performance, responsibility and project <\/p>\n
26<\/p>\n
management of a specific job; and (d) receives a substantial portion of the
\n total remuneration from a specific job.<\/p>\n
(3) “Mentor Venture” as used in this Section 2.6(j) refers to a
\n ————–
\n combination of a business entity with a Detroit-Based Business, Detroit
\n Resident Business, Small Business Concern, minority business concern or
\n women-owned business for the purpose of providing the latter business
\n entity with training, expertise, skill, experience, market access or other
\n attributes in a business, trade or profession designed to enhance its
\n ability to compete in the marketplace.<\/p>\n
(k) Developer agrees to comply in all material respects with all
\nGovernmental Requirements.<\/p>\n
(l) In the event Developer elects to construct a Temporary Casino
\nsubject to and in accordance with the provisions of Article XX
\n ———- <\/p>\n
(1) Developer shall submit to the Mayor as exhibits to its
\n Temporary Casino Proposal (as that term is defined in Section
\n ——-
\n 20.5(b)), the information required by the following Sections, modified
\n ——–
\n to address the Temporary Casino as applicable: 8.1(d), (e), (g), (i),
\n ———————-
\n (j), (k), (l), (m), (n), (o), (p), (q), (r), (s), (t), (u), (v), (w),
\n ———————————————————————
\n (x), (y), (z), (aa), (bb), (cc), (dd) and (ee); and
\n ———————————————- <\/p>\n
(2) Developer agrees that its obligations set forth in the
\n following Sections apply to the Temporary Casino as well as to the
\n Casino Complex: 2.6(b), (c), (e) (substituting “completion of the
\n ————————————————-
\n Temporary Casino” for “Completion Date” and “anniversary of the
\n —————————————————————
\n completion of the Temporary Casino” for “Determination Date”), (f),
\n ——————————————————————-
\n (g), (h), (i), (j) and (k), and substituting all references to the
\n ————————–
\n exhibits therein to the exhibits furnished as part of the Temporary
\n Casino Proposal.<\/p>\n
(m) Except as the Agreement or the context may otherwise require, each
\nof the Developer’s obligations set forth in Sections 2.6(b)-(l),
\n ——————-
\ninclusive, are ongoing and shall commence as of the Closing Date and
\nperformance thereof shall be determined annually.<\/p>\n
(n) Joint Employment and Procurement Advisory Board<\/p>\n
(1) The Joint Employment and Procurement Advisory Board (the
\n “JEPAB”) will be a private entity acting in an advisory capacity to
\n Developer and the Other Land-Based Casino Developers. Developer shall
\n cooperate with the Other Land-Based Casino Developers to establish the
\n JEPAB within thirty (30) days after the Closing Date. Developer and each
\n of the Other Land-Based Casino Developers will appoint two (2) members to
\n the JEPAB, and the Mayor and the City Council will each be invited to
\n appoint two (2) members from the community at large. The public appointees
\n will be non-salaried, but will be entitled to expense reimbursement paid by
\n the JEPAB.<\/p>\n
27<\/p>\n
(2) The purpose of the JEPAB will be to work closely with the
\n Developer and the Other Land-Based Casino Developers to evaluate the
\n effectiveness of, and recommend improvements to, Developer’s and each of
\n the Other Land-Based Casino Developers’ respective programs to achieve
\n their goals of not less than fifty-one percent (51%) Detroit resident
\n employment and not less than thirty percent (30%) procurement of goods and
\n services from Detroit-Based Businesses, Detroit Resident Businesses,
\n minority business concerns, women-owned businesses and\/or Small Business
\n Concerns. The JEPAB will review Developer’s and each of the Other Land-
\n Based Casino Developers’ practices and programs aimed at achieving such
\n goals, review the success of such efforts, recommend improvements and
\n refinements to such practices and programs, and assist the Developer and
\n each of the Other Land-Based Casino Developers in involving local community
\n organizations and businesses in support of such efforts. Additionally, the
\n JEPAB may recommend to Developer and each of the Other Land-Based Casino
\n Developers the engagement of outside consultants to provide expert,
\n independent guidance as to how to make Developer’s and each of the Other
\n Land-Based Casino Developers’ programs more effective.<\/p>\n
(3) Developer commits One Million Dollars ($1,000,000) to fund
\n the activities of the JEPAB. Such amount will be derived from funds
\n dedicated under Section 8.1(j) to promote development, economic growth and
\n ————–
\n jobs in the City. Developer shall fund the JEPAB according to the
\n following schedule: Two Hundred Thousand Dollars ($200,000) on the
\n formation of the JEPAB; Four Hundred Thousand Dollars ($400,000) on the six
\n (6) month anniversary of the Closing Date; and Four Hundred Thousand
\n Dollars ($400,000) on the twelve (12) month anniversary of the Closing
\n Date.<\/p>\n
2.7 Obtaining Certificate of Suitability and Casino License. Promptly
\n ——————————————————-
\nfollowing the Effective Date, Developer agrees to submit to the Board a
\ncompleted application to obtain a Certificate of Suitability in the manner and
\nform prescribed by such Gaming Authorities and thereafter fully cooperate with,
\nand cause its members and their respective owners and investors to cooperate
\nwith, the background investigation conducted by the Board. Based solely on the
\ninformation furnished by Developer to City in the RFP\/Q, but without review of
\nsuch application, City agrees to support such application before the Board.
\nDeveloper shall diligently pursue the issuance of such Certificate of
\nSuitability on terms and conditions satisfactory to Developer. Upon obtaining
\nthe Certificate of Suitability, Developer shall thereafter diligently pursue the
\nsatisfaction of all conditions to obtaining a Casino License.<\/p>\n
2.8 Payment of Development Process Costs. Upon the Effective Date,
\n ————————————
\nDeveloper shall pay to City the sum of One Million Dollars ($1,000,000) toward
\nits Allocable Share of the Development Process Costs. Thereafter, City and\/or
\nEDC shall invoice Developer from time to time but no more frequently than
\nmonthly for (i) its Allocable Share of Development Process Costs and (ii) to the
\nextent City and\/or EDC in their respective reasonable discretion determines that
\nany Development Process Cost is directly attributable to a particular Land-Based
\nCasino Development, the entire amount of such Development Process Cost, in each
\ncase incurred prior to the Completion Date. Subsequent to the Completion Date
\nbut in no event later than six (6) months following completion of the Land-Based
\nCasino Developments, City and\/or EDC shall <\/p>\n
28<\/p>\n
invoice Developer only for such Development Costs as City and\/or EDC reasonably
\ndetermine were incurred in connection with the Development. Developer shall pay
\nsuch invoiced Development Process Costs within fifteen (15) Business Days from
\nthe date of the invoice. City and EDC, respectively, shall submit to the
\nDeveloper a summary of the charges set forth in such invoice containing such
\ndetail as City and EDC, respectively, reasonably believes is necessary to inform
\nDeveloper of the nature of the costs and expenses and the basis for the
\nallocation amongst the Developer and the Other Land-Based Casino Developers. At
\nDeveloper’s request, City and EDC shall consult with Developer on the necessity
\nfor and allocation of such charges during the five (5) Business Days period
\nimmediately subsequent to Developer’s receipt of such summary. In addition,
\nprior to the Closing Date, City shall require each Other Land-Based Casino
\nDeveloper to enter into an agreement with Developer providing for arbitration of
\nany dispute concerning the allocation of any Development Process Costs amongst
\nDeveloper and each Other Land-Based Casino Developer.<\/p>\n
2.9 Payment of Feehold Compensation. Provided that the proviso in the
\n ——————————-
\nfirst sentence of Section 4.11 has been satisfied, Developer agrees to pay,
\n ————
\nwithout duplication, its Pro Rata Share of Feehold Compensation, less its Pro
\nRata Share of the City Contribution, as and to the extent set forth in the
\nConveyance Agreement. Developer hereby acknowledges that upon approval by City
\nCouncil, portions of the Casino Area and Public Land have been or will be
\nacquired by City through one or more acquisition activities including exercise
\nof the power of eminent domain, and that in some instances, a final cost of
\nacquisition particularly with respect to eminent domain actions (“Final Purchase
\nPrice”) may not be known for some period of time after the Effective Date. City
\nshall estimate the amount of compensation necessary to pay the Final Purchase
\nPrice in accordance with law (the “Estimated Compensation”). In the event the
\nFinal Purchase Price exceeds the Estimated Compensation, Developer shall pay to
\nEDC in immediately available funds within five (5) Business Days following
\nwritten notice thereof from the EDC, its Pro Rata Share of the difference
\nbetween the Estimated Compensation and the Final Purchase Price. If the Final
\nPurchase Price shall be less than the Estimated Compensation, the difference
\nshall be refunded by the City within ten (10) Business Days after the Final
\nPurchase Price has been determined.<\/p>\n
2.10 Initial Financing. Upon the Effective Date, Developer shall have
\n —————–
\neither obtained the Initial Financing or shall at all times thereafter
\ndiligently pursue obtaining the Initial Financing.<\/p>\n
2.11 Failure to Pay. All amounts, including, without limitation,
\n ————–
\nDevelopment Process Costs and Feehold Compensation, owed by Developer to City
\nand\/or EDC pursuant to any provision of this Agreement shall bear interest at
\nthe Default Rate from the due date (but if no due date is specified, then
\nfifteen (15) Business Days from demand for payment) until paid.<\/p>\n
2.12 Condition of Project Premises. Matters involving the condition of the
\n —————————–
\nProject Premises are set forth in the Conveyance Agreement.<\/p>\n
2.13 Developer’s Development Obligations. The Developer agrees to
\n ———————————–
\nundertake and complete the Development by the Agreed Upon Opening Date subject
\nto and in accordance with <\/p>\n
29<\/p>\n
the terms of this Agreement. Except as otherwise provided herein, Developer
\nagrees, for itself and its successors and assigns, that, from and after the
\nClosing Date, it shall promptly begin, and thereafter shall diligently prosecute
\nor cause to be prosecuted to Completion, the Design Services and the Work
\nsubject to and in accordance with the terms of this Agreement.<\/p>\n
2.14 Other Commitments of Developer. By the Closing Date, Developer shall
\n ——————————
\ndeliver to City and EDC the following:<\/p>\n
(a) The Guaranty and Keep Well Agreement, executed by an Acceptable
\n Guarantor.<\/p>\n
(b) The opinions of counsel referred to in Section 2.4(a)(5).
\n —————– <\/p>\n
(c) The Memorandum of Agreement.<\/p>\n
(d) The Closing Certificates.<\/p>\n
(e) The executed agreement of Parent Company, any Casino Manager and
\n each Restricted Party requested by City, to abide by the Radius
\n Restriction.<\/p>\n
2.15 Other Commitments of City and EDC. By the Closing Date, City and EDC
\n ———————————
\nshall deliver to Developer the opinions of counsel referred to in Section
\n ——-
\n2.4(a)(6).
\n——— <\/p>\n
2.16 Approval by City, EDC and PM. Wherever an approval is required of
\n —————————-
\nCity, EDC, or PM pursuant to the terms of this Agreement, the approval or
\ndisapproval shall be given in writing, which in the case of disapproval, shall
\nset forth the reasons of disapproval. Whenever in this Agreement any consent or
\napproval of the City is required, such approval or consent shall be given or
\nwithheld by the Mayor, any City official designated by the Mayor or appropriate
\nCity department unless otherwise indicated. Prior to the Closing Date and from
\ntime to time thereafter, City and EDC shall designate in writing to Developer
\nthose individuals who have authority to grant any approvals or consents
\nhereunder on behalf of City and EDC. Developer shall be entitled to rely on any
\nwriting signed by such designees.<\/p>\n
2.17 Prompt Responses. The parties agree that the time limits and time
\n —————-
\nperiods provided herein are of the essence in this Agreement. The parties
\nmutually agree to exercise their mutual and separate best efforts to consider
\nand respond promptly and as expeditiously as reasonably possible notwithstanding
\nany time period provided in this Agreement.<\/p>\n
2.18 Funding of Excess Costs.
\n ———————– <\/p>\n
(a) As promptly as practicable, but in any event not later than one
\n hundred eighty (180) days following the Effective Date, the City shall
\n submit to Mayor and City Council: (1) Schedule A, specifying (i) the City’s
\n best estimate of the aggregate of the Feehold Compensation including the
\n City Contribution; (ii) the cost of all Infrastructure Improvements; and
\n (iii) the costs of all of the above and below ground environmental Response
\n activity <\/p>\n
30<\/p>\n
necessary in order to obtain a covenant not to sue in favor of the City, EDC,
\nDeveloper and the Other Land-Based Casino Developers issued by the Michigan
\nDepartment of Environmental Quality(“MDEQ”) with respect to the Casino Area and
\nthe Public Land; and (2) Schedule B, identifying all of the Infrastructure
\nImprovements for which the Developer and the Other Land-Based Casino Developers
\nwill be responsible. Developer shall cooperate with the City and EDC in the
\npreparation of such Schedules reflecting the nature and cost of the
\nInfrastructure Improvements and estimates of the cost of Response activity.<\/p>\n
(b) If Schedule A reflects an estimate in excess of Two Hundred Fifty
\nMillion Dollars ($250,000,000), the City, through the Mayor, may, subject to
\napproval of the City Council, within ten (10) Business Days thereafter,
\ndetermine whether the project described in the EDC Plan is suitable for public
\npurposes. In the event the City determines that such project is still suitable
\nfor public purposes, the City shall proceed with the project described in the
\nEDC Plan. If the City determines otherwise, the City and the EDC shall use their
\ncommercially reasonable efforts to locate a suitable alternate site for
\nDeveloper to develop, construct and operate the Casino Complex.<\/p>\n
2.19 Administration of this Agreement.
\n ——————————– <\/p>\n
(a) The Mayor shall designate the City departments, agencies and\/or
\npersonnel who shall be responsible for the administration of this Agreement;
\nmonitoring of the performance by the Developer of its duties and obligations
\nunder this Agreement; and making recommendations to the Mayor concerning its
\nenforcement.<\/p>\n
(b) Except to the extent set forth in any other certificate or report
\ndelivered to the City that contains substantially the same information, not
\nlater than ninety (90) days after the end of each Fiscal Year commencing with
\nthe Fiscal Year in which the Closing Date occurs, Developer shall deliver to
\nCity a report setting forth the following:<\/p>\n
(1) a description of Developer’s efforts to comply with the
\n requirements of Section 2.6(b) during such Fiscal Year, as they apply
\n ————–
\n to the Temporary Casino, if any, and the Casino Complex;<\/p>\n
(2) a statement as to the number of employees (including the
\n total number of full-time, part-time and full-time equivalent) employed by
\n the Developer as of the completion of the Temporary Casino, if any, each
\n anniversary thereof, and on the Completion Date and each Determination Date
\n (as the term is defined in Section 2.6(e));
\n —————-<\/p>\n
(3) a description of any administrative determination, binding
\n arbitration decision, or judgment rendered by a court of competent
\n jurisdiction finding a violation of any federal, state or local laws
\n governing equal employment opportunity during such Fiscal Year;<\/p>\n
31<\/p>\n
(4) a description of Developer’s efforts to comply with the
\n requirements of Sections 2.6(g), (h), (i) and (j) during such Fiscal
\n ———————————
\n Year, as they apply to the Temporary Casino, if any, and to the Casino
\n Complex;<\/p>\n
(5) a statement setting forth material information adequate to
\n enable the City to determine compliance with Section 7.2;
\n ———– <\/p>\n
(6) whether Developer is aware of any non-compliance with the
\n Radius Restriction, as that term is defined in Section 7.3(a), and a
\n ————–
\n description thereof if any has occurred during such Fiscal Year;<\/p>\n
(7) a statement as to whether any agreement for the management
\n and\/or operation of any Component has been entered into, amended in any
\n material respect, or assigned during such Fiscal Year, together with a copy
\n of any such agreement, amendment or assignment;<\/p>\n
(8) a description of Developer’s efforts to comply with the
\n requirements of Section 7.6 during such Fiscal Year;
\n ———– <\/p>\n
(9) a description of any Material Alteration commenced during
\n such Fiscal Year;<\/p>\n
(10) a description of Developer’s efforts to comply with the
\n requirements of Section 7.13(a) during such Fiscal Year;
\n ————— <\/p>\n
(11) whether Developer is aware of any non-compliance with the
\n requirements of Section 7.13(c) during such Fiscal Year;
\n ————— <\/p>\n
(12) a description of Developer’s efforts to comply with the
\n requirements of Section 7.17 during such Fiscal Year;
\n ———— <\/p>\n
(13) to the extent not otherwise covered in response to subparts
\n (b)(1)-(12) above, a description of any change during such Fiscal Year
\n in Developer’s efforts to comply with the plans, measures,
\n commitments, undertakings and covenants set forth on the following
\n Exhibits: 8.1(c) (limited to the officers or managers of Developer and
\n ————————————————————
\n any Casino Manager), (g), (j), (k), (l), (m), (n), (p), (q), (r), (s),
\n ———————————————————————-
\n (u), (v), (w), (x), (y), (z), (cc), (dd) and (ee); and
\n ——————————————————<\/p>\n
(14) whether Developer is aware of any Transfer occurring during
\n such Fiscal Year.<\/p>\n
No information need be included in such report as to any obligation of
\n Developer which has lapsed or which otherwise does not apply during such
\n Fiscal Year.<\/p>\n
32<\/p>\n
ARTICLE III<\/p>\n
FINANCING<\/p>\n
3.1 Initial Financing.
\n —————– <\/p>\n
(a) Developer agrees to obtain Initial Financing from a Suitable
\nLender on such terms and conditions as are acceptable to City and necessary and
\nsufficient in the reasonable opinion of City to:<\/p>\n
(1) Fully perform its development obligations set forth in
\n Section 2.13.
\n ———— <\/p>\n
(2) Pay City and\/or EDC for Developer’s Pro Rata Share of the
\n Feehold Compensation.<\/p>\n
(3) Fund the cost of Developer’s portion of all Infrastructure
\n Improvements to be completed by City.<\/p>\n
(4) Reimburse City and\/or EDC, as applicable, for the Development
\n Process Costs.<\/p>\n
(5) Provide adequate funds for all preopening activities and
\n initial working capital of the Casino Complex.<\/p>\n
(6) Provide adequate funds and\/or other financial guarantees or
\n assurances to enable the Casino Complex to continue operating in the event
\n that actual operations do not meet operating projections during the first
\n twenty-four (24) months subsequent to the Completion Date.<\/p>\n
(7) Fully perform all of Developer’s other commitments set forth
\n in Section 2.6, except for such commitments as are to be funded out of
\n ———–
\n operating cash flow of the Casino Complex.<\/p>\n
(b) No portion of the Initial Financing may be derived from or be
\ndependent on the success of the Temporary Casino.<\/p>\n
(c) Subject to Section 7.13(d), Developer may mortgage, pledge or
\n —————
\notherwise encumber all or part of Developer’s interest in the Development
\nin connection with the Initial Financing.<\/p>\n
(d) The terms and conditions of the Initial Financing as and to the
\nextent set forth on Exhibit 8.1(g) are acceptable to City, subject to
\n ————–
\nreview by the City of the final documents incorporating such terms and
\nconditions.<\/p>\n
33<\/p>\n
3.2 Financial Covenants. Subject to Section 3.7, Developer shall maintain
\n ——————- ———–
\n(i) at all times on and after the Completion Date a Leverage Ratio of not
\ngreater than 3.35 to 1 or Net Worth of no less than $165 million; (ii)
\ncommencing with the end of the fourth full fiscal quarter subsequent to
\nCompletion, a Debt Service Coverage Ratio of at least 1.0 to 1; and (iii)
\ncommencing with the end of the eighth full fiscal quarter subsequent to
\nCompletion, a Debt Service Coverage Ratio of at least 1.2 to 1. The obligations
\nof Developer under this Section 3.2 shall lapse and be of no further force or
\n ———–
\neffect seven (7) years after the Execution Date.<\/p>\n
3.3 Subsequent Financings. Subject to Section 3.7, after the Completion
\n ——————— ———–
\nDate, Developer may mortgage, pledge or otherwise encumber Developer’s interest
\nin the Development from time to time only after first obtaining City’s prior
\nwritten consent which consent shall not be unreasonably withheld, provided that
\nCity’s consent shall not be required in connection with a Financing, or the
\nMortgage or other security agreements as security therefor, in which each lender
\nis a Suitable Lender, so long as the principal amount of Secured Debt incurred
\nin the Financing does not (i) have a maturity date earlier than seven (7)
\nyears subsequent to the Closing Date; and (ii) cause a violation of the Leverage
\nRatio or Debt Service Coverage Ratio covenants set forth in Section 3.2. The
\n ———–
\nobligations of Developer under this Section 3.3 shall lapse and be of no further
\n ———–
\nforce or effect seven (7) years after the Execution Date.<\/p>\n
3.4 Transfer by Mortgagee. Developer agrees that it shall not enter into
\n ———————
\nany Mortgage unless such Mortgage shall provide that (i) the Mortgagee shall not
\ntransfer or assign its interest in any Mortgage without City’s prior written
\nconsent, except to a Suitable Lender; and (ii) if, as the result of a Loan
\nDefault, the Mortgagee forecloses upon or otherwise acquires all or part of
\nDeveloper’s interest in the Development, the Mortgagee (or the Nominee of the
\nMortgagee) shall expressly accept and agree to assume all of the terms,
\ncovenants and provisions of this Agreement contained to be kept, observed and
\nperformed by the Developer and become bound to comply therewith. As used in
\nthis Agreement, the word “Nominee” shall mean a Person who is designated by
\nMortgagee to act in place of the Mortgagee solely for the purpose of holding
\ntitle to the Development and performing the obligations of Developer hereunder.<\/p>\n
3.5 Sinking Fund Provision. Subject to Section 3.7, during the thirty-six
\n ———————- ———–
\n(36) month period ending on the final maturity date of any Secured Debt
\noutstanding at any time, Developer shall make Sinking Fund Payments equaling, in
\nthe aggregate, thirty-three percent (33%) of the original principal amount of
\nthe Secured Debt less all Voluntary Sinking Fund Payments (as hereinafter
\ndefined) made prior to or during such thirty-six (36) month period with respect
\nto any and all Financings. The Sinking Fund Payments, if any, required hereby
\nshall be made in semi-annual installments such that the total sum of Sinking
\nFund Payments and Voluntary Sinking Fund Payments made (a) as of the date
\ntwenty-four (24) months prior to such final maturity debt equals eleven percent
\n(11%) of the original principal amount of the Secured Debt, (b) as of the date
\ntwelve (12) months prior to such final maturity debt equals twenty-two percent
\n(22%) of the original principal amount of the Secured Debt, and (c) as of the
\nfinal maturity debt equals thirty-three percent (33%) of the original principal
\namount of the Secured Debt. The obligations of Developer under this Section 3.5
\n ———–
\nshall lapse and be of no further force or effect seven (7) years after the
\nExecution Date.<\/p>\n
34<\/p>\n
“Sinking Fund Provisions” shall be defined as (i) the retirement of debt
\nunder such Financing or Financings, or (ii) placement of funds in a segregated
\nSinking Fund account. Funds in the Sinking Fund account shall, except for funds
\noverfunded which may be withdrawn by Developer, be applied to reduce or satisfy
\nSecured Debt outstanding under such Financing or Financings.<\/p>\n
“Voluntary Sinking Fund Provisions” means (i) all voluntary, scheduled or
\nother principal repayments actually paid with respect to any Secured Debt
\noutstanding under such Financing or Financings; (ii) deposited in a Sinking Fund
\nAccount established by any Mortgagee; or (iii) voluntary prepayment of unsecured
\nFinancings during any period when they are callable and in fact called.<\/p>\n
3.6 Financing Representations; Restrictions. In no event may Developer or
\n —————————————
\nany Finance Affiliate represent that City and\/or EDC are or in any way may be
\nliable for the obligations of Developer or any Finance Affiliate in connection
\nwith (i) any financing agreement or (ii) any public or private offering of
\nsecurities. If Developer or any Finance Affiliate shall at any time sell or
\noffer to sell any securities issued by Developer or any Finance Affiliate
\nthrough the medium of any prospectus or otherwise that relates to the Casino
\nComplex or its operation, Developer shall (i) first submit such offering
\nmaterials to City for review with respect to Developer’s compliance with this<\/p>\n
Section 3.6 and (ii) do so only in compliance with all applicable federal and
\n———–
\nstate securities laws, and shall clearly disclose to all purchasers and offerees
\nthat (y) the City and\/or the EDC shall not in any way be deemed to be an issuer
\nor underwriter of such securities, and (z) the City and\/or the EDC and its
\nofficers, directors, agents, and employees have not assumed and shall not have
\nany liability arising out of or related to the sale or offer of such securities,
\nincluding without limitation, any liability or responsibility for any financial
\nstatements, projections or other information contained in any prospectus or
\nsimilar written or oral communication. Developer agrees to indemnify, defend or
\nhold the City and the EDC and their respective officers, directors, agents and
\nemployees free and harmless from, any and all liabilities, costs, damages,
\nclaims or expenses arising out of or related to the breach of its obligations
\nunder this paragraph.<\/p>\n
3.7 Guarantee of Developer’s Obligations. So long as a Performance
\n ————————————
\nGuaranty from an Acceptable Guarantor remains in full force and effect, (i)
\nDeveloper’s failure to comply with the financial covenants set forth in Section
\n ——-
\n3.2 shall be excused and shall not be an Event of Default; (ii) Developer’s
\n—
\nfailure to meet or exceed the Performance Threshold shall (x) not give rise to
\nany obligation of Developer to deliver an Annual Business Plan under Section
\n ——-
\n7.10(b); (y) not give rise to any obligation of Developer to notify City under
\n——-
\nSection 7.12; and (z) not give rise to any obligation of Developer to make its
\n————
\nBooks and Records available to City under Section 17.1; (iii) Developer shall
\n ————
\nhave no obligation under Section 3.3 to obtain City’s consent to a Financing;
\n ———–
\n(iv) Developer shall have no obligation under Section 3.5 to make Sinking Fund
\n ———–
\nProvisions; (v) Developer shall have no obligation under Section 7.4 to seek the
\n ———–
\napproval of City to enter into an agreement or contract to operate or manage the
\nhotel Component or the parking Component, provided that at such time as the
\nPerformance Guaranty is of no force or effect either (1) such agreement or
\ncontract terminates and the operation or management of such Component reverts to
\nDeveloper or the Parent Company or (2) Developer seeks and receives City’s
\napproval <\/p>\n
35<\/p>\n
of the Casino Component Manager\/Operator of such Component; (vi) Developer
\nshall have no obligation under Section 7.7 to establish or continue to
\n ———–
\nfund a Capital Maintenance Fund; (vii) Developer shall have no obligation under<\/p>\n
Section 7.16 to deliver the certificate required thereunder; (viii) Developer
\n————
\nshall have no obligation under Section 16.2 to deposit insurance proceeds into a
\n ————
\ntrust account; and (ix) Developer shall have no obligation under Section 16.4 to
\n ————
\ndeposit any Proceeds into an escrow account.<\/p>\n
ARTICLE IV<\/p>\n
DESIGN; PROJECT SCHEDULING; INFRASTRUCTURE; QUALITY<\/p>\n
4.1 Schematic, Design and Construction Documents.
\n ——————————————– <\/p>\n
(a) On or before one hundred twenty (120) days after the Closing Date,
\nDeveloper shall prepare and submit the Schematic Design Documents to PM for
\nreview and approval as provided in Section 4.2, together with such othe
\n ———–
\ndrawings, traffic plans, documents and other supporting information as may be
\nreasonably necessary to enable the PM to evaluate the Schematic Design
\nDocuments, and as soon as practicable following its completion, a Working
\nDevelopment Schedule. Developer covenants and agrees that the Schematic Design
\nDocuments will substantially conform to representations and warranties set forth
\nin Section 8.1(i) except as and to the extent otherwise approved by the City.
\n ————–<\/p>\n
(b) Upon receipt by PM of the Schematic Design Documents, PM shall
\npromptly and diligently review such items and submit them to the EDC. The EDC
\nshall either approve them as submitted or notify Developer in writing of its
\ndisapproval and any proposed changes (including the reasons therefor) within
\ntwenty-one (21) days after receipt thereof by the PM. Similarly, Developer shall
\nsubmit to PM any request for a Material Deviation, together with such supporting
\ninformation as reasonably required by PM. Upon receipt of such request and
\ninformation, PM shall promptly and diligently review such items and submit them
\nto the EDC. The EDC shall either approve the request as submitted or notify
\nDeveloper in writing of its disapproval and any proposed changes (including the
\nreasons therefor), within twenty-one (21) days after receipt thereof by the PM.<\/p>\n
(c) As soon as practicable, Developer shall prepare and submit the
\nDesign Development Documents to PM for review for compliance with the
\nSchematic Design Documents.<\/p>\n
(d) As soon as practicable, Developer shall prepare and submit the
\nConstruction Documents to PM for review for compliance with the Schematic Design
\nDocuments. Developer may prepare and submit the Construction Documents in parts
\nin lieu of submitting all of such documents at one time. The Contractor
\nAgreement(s) should describe the methods of construction that are designed to
\nfacilitate compliance with applicable Governmental Requirements relevant to the
\nreduction of the negative impact of construction on adjacent properties and on
\nbusinesses in the vicinity of the construction. These shall include policies<\/p>\n
36<\/p>\n
regarding scheduling of certain activities (e.g., delivery of materials and
\nequipment) that disrupt vehicular and pedestrian traffic, such activities being
\nlimited to off-peak hours to the extent possible and consistent with the Working
\nConstruction Schedule; policies concerning the placement of temporary structures
\n(e.g., field offices, scaffolding, hoists); temporary utility connections (e.g.,
\nlight, heat, power) that may adversely affect surrounding businesses; and
\nefforts to be undertaken to schedule public paving, sidewalks, sewers, curbs and
\nutility hookups.<\/p>\n
(e) As soon as practicable, Developer shall submit any material
\nchanges in the Design Documents or Working Development Schedule to PM.<\/p>\n
(f) EDC acknowledges that Developer may phase its submission of Design
\nDocuments and may “fast track” certain elements. EDC agrees that Developer may
\ndo so as long as the Completion is not delayed beyond the Agreed Upon Opening
\nDate.<\/p>\n
4.2 Architect(s) and Consultants.
\n —————————- <\/p>\n
(a) Neither the Architect(s) nor any other Consultants are agents,
\neither expressed or implied, of City or EDC.<\/p>\n
(b) Upon their engagement, the resumes of the principals of the
\nArchitect(s) and other Consultants working on the Development shall be promptly
\nprovided in writing to PM. In the event that any of the principals of the
\nArchitect(s) and other Consultants working on the Development are changed,
\nDeveloper shall notify PM as promptly as practicable upon learning of such
\nchange.<\/p>\n
4.3 City or EDC Not Responsible for Design Documents. Neither City nor
\n ————————————————
\nthe EDC shall be responsible for any error or omission in the Design Documents,
\nor for failure of the Design Documents, or a part thereof, to comply with
\nGovernmental Requirements, or for Design Documents that result in or cause a
\ndefective design or construction.<\/p>\n
4.4 Permits.
\n ——- <\/p>\n
(a) Developer shall diligently prepare and file all applications for,
\nand pursue and use diligent efforts to obtain, the Permits. PM shall (x)
\ncooperate with and assist Developer in securing the Permits and (y) use
\ncommercially reasonable efforts to expedite the issuance of the Permits;
\nprovided, however, that nothing in this Agreement shall adversely affect, limit,
\nrestrict or reduce the right of the City or the County, as Governmental
\nAuthorities, to exercise their respective governmental powers and authority and
\nto act in regulatory matters in accordance with applicable Governmental
\nRequirements.<\/p>\n
(b) Developer shall, not later than the Outside Submission Date,
\nsubmit to the City Department of Buildings and Safety Engineering all
\ndocumentation reasonably necessary for such Department to review and upon
\ncompletion of such review, (subject to such comments and changes requested by
\nsuch Department), issue the Building Permit.<\/p>\n
37<\/p>\n
4.5 Non-Material Deviations. Developer shall have the right to make Non-
\n ———————–
\nMaterial Deviations, including the right to issue Supplemental Instructions
\nordering changes in the Work to accommodate Non-Material Deviations.<\/p>\n
4.6 Material Deviations. Developer shall make no Material Deviations
\n ——————-
\nwithout the prior written approval of the City and the EDC. Notwithstanding the
\nforegoing, due to the imprecise ability to measure “gaming floor area,” City and
\nEDC agree that if in good faith the Developer measures its gaming floor area in
\na manner that differs from City’s measurement of gaming floor area by ten
\npercent (10%) or less, such variance shall not be considered a Material
\nDeviation.<\/p>\n
4.7 Presentation Illustrations; Virtual Reality.
\n ——————————————- <\/p>\n
(a) The Developer shall deliver to the EDC and City as soon as
\npracticable following the Closing Date presentation-quality illustrations
\nof the Casino Complex, including interiors.<\/p>\n
(b) The Developer, in coordination with the Other Land-Based Casino
\nDevelopers, shall deliver to EDC as soon as practicable a “virtual reality
\nillustration” of the Casino Complex showing first, vehicular traffic, next, the
\nmassing of the facilities in the Casino Area and lastly, renderings of the
\nexteriors, which EDC shall make available to City. In no event shall such
\nillustration include the interiors of the Casino Complex.<\/p>\n
4.8 Integrated Complex. Developer agrees that it shall design the Casino
\n ——————
\nComplex as an integrated complex. The goal of the Development is that the
\nbuildings, landscaping and other pertinent improvements will blend together and
\njoin pleasantly with adjacent properties to create an elegant environment,
\ncompatible with City’s urban context.<\/p>\n
4.9 Developer’s Representative and Program Manager.
\n ———————————————- <\/p>\n
(a) Unless provided otherwise, whenever approval or action by
\nDeveloper is required by this Agreement with respect to construction matters,
\nsuch action or approval shall be taken or given by the Developer’s
\nRepresentative. Written notice of the designation of Developer’s Representative
\n(and any subsequent change in the Developer’s Representative) shall be given by
\nthe Developer to the other parties in the manner provided in Section 21.1.
\n ————-
\nNothing herein is intended to impose personal liability on Developer’s
\nRepresentative except as may exist by law or contract between a party and its
\nagent or authorized representative.<\/p>\n
(b) As to construction related matters and approvals: (i) EDC agrees
\nthat PM shall communicate with the Developer and any of its agents only through
\nDeveloper’s Representative; and (ii) Developer’s Representative agrees to
\ncommunicate with EDC through the PM. Any variation of this procedure must be
\nauthorized in writing.<\/p>\n
(c) Commencing on the Closing Date, the Developer’s Representative and
\nthe PM shall meet as necessary (no less often than monthly) to discuss and
\ncoordinate all aspects of <\/p>\n
38<\/p>\n
the Work (“Work Meetings”). The Work Meetings are, among other things, intended
\nto constitute the principal forum in which matters addressed in this Article IV
\n ———-
\nand all other EDC approvals (outside of the normal approval, permitting and
\ninspection process associated with building projects generally in the City) are
\nto be discussed and resolved and in which the PM shall propose methods to
\nexpedite the resolution of outstanding issues and the obtaining of necessary
\nPermits and inspections by the City and its subdivisions and instrumentalities.
\nWith respect to any matter raised with the PM which under this Agreement
\nrequires the approval of the EDC, unless otherwise provided in this Agreement,
\nthe PM shall respond as promptly as practicable within fifteen (15) days of such
\nrequest. If the EDC refuses to approve such matter, the Developer’s
\nRepresentative and the PM shall continue their discussions in good faith to
\narrive at a resolution of the outstanding matter acceptable to Developer and EDC
\nin the exercise of their reasonable judgment.<\/p>\n
(d) EDC agrees to use reasonable efforts to (i) retain a PM prior t
\nthe Closing Date; (ii) advise PM of his or her obligation to maintain the
\nconfidentiality of confidential information provided to him or her by Developer;
\nand (iii) obtain a post-employment restriction agreement restricting the PM from
\nbecoming employed by the Developer or the Other Land-Based Casino Developers or
\ntheir respective Affiliates for a period of two (2) years after the Completion
\nDate.<\/p>\n
4.10 Utility Relocation. Developer shall, at Developer’s sole cost and
\n ——————
\nexpense, be responsible for the location and identification of all active
\nutilities within the Development, including but not limited to electrical, gas,
\nwater, steam, sewerage, telephone and cable. The cost of relocating any
\nutilities owned or operated by a private or quasi-public entity shall be the
\nresponsibility of the private or quasi-public utility.<\/p>\n
4.11 Infrastructure Improvements. Provided Schedule A reflects an
\n —————————
\naggregate estimate of not more than Two Hundred Fifty Million Dollars
\n($250,000,000) or such higher number as shall have been approved in writing by
\nDeveloper, Developer shall pay City for Developer’s Pro Rata Share of all
\nreasonable and documented hard and soft costs for Infrastructure Improvements
\nprior to the time that City pays any costs related thereto according to a draw
\nprocedure having adequate safeguards to assure timely payments to the City to be
\nestablished by Developer, City and the Other Land-Based Casino Developers. Upon
\nreceipt of such funds, City agrees to use such funds to construct the
\nInfrastructure Improvements. The Developer shall have no responsibility to
\nmaintain or pay for the maintenance of any Infrastructure Improvements not owned
\nby Developer. Neither the City nor the EDC shall be responsible to pay for or
\notherwise fund the construction of any Infrastructure Improvements, such costs
\nand expenses being the sole responsibility of the utility in the case of any
\nprivate or quasi-public utilities or the responsibility of Developer in all
\nother circumstances. City will advise and consult with Developer of its overall
\nplans for Infrastructure Improvements to or affecting the Casino Area.<\/p>\n
4.12 Quality of Work and Materials. All Work shall be performed in a good
\n —————————–
\nand workmanlike manner and in accordance with good construction practices. All
\nmaterials used in <\/p>\n
39<\/p>\n
the construction of the Development shall be of first class quality. The
\nquality of the Finish Work shall meet or exceed First Class Casino Complex
\nStandards.<\/p>\n
ARTICLE V<\/p>\n
SITE MATTERS<\/p>\n
5.1 Developer’s Right of Entry Prior to Conveyance. As City and\/or EDC
\n ———————————————-
\nobtains a right of entry which permits Developer onto the Project Premises for
\npurposes of conducting tests and inspections, the City and\/or EDC shall grant to
\nDeveloper (or shall cause Developer to be granted) a right of entry onto the
\nProject Premises to conduct preliminary or preparatory work, such as surveys
\n(including environmental surveys) and tests (including but not limited to core
\nsampling, test pits, monitoring wells, soil compaction and test pilings). City,
\nEDC and\/or Developer shall use reasonable best efforts to cause any parties who
\nprepared such surveys or tests to issue a written statement that permits the
\nCity, EDC and Developer, as applicable, to rely on such surveys and tests. To
\nthe extent practical, City and\/or EDC and Developer agree to share the results
\nof such testing and inspection activities so as to avoid a duplication of such
\nefforts. Developer shall not suffer or permit to be enforced against all or any
\npart of the Development any contractors’, subcontractors’ or materialmens’ liens
\narising from any of the aforesaid activities. Developer shall promptly pay,
\nbond out or cause to be paid or bonded out all of said claims, demands and liens
\nbefore any action is brought to enforce the same. Developer hereby agrees to
\ndefend, indemnify and hold harmless City and EDC and each of their officers,
\nagents and employees from and against any and all liabilities, losses, damages,
\ncosts, expenses, claims, encumbrances, obligations, charges, penalties and
\ncauses of action (including without limitation reasonable attorneys’ fees) that
\nCity and EDC and each of their officers, agents and employees may suffer or be
\nrequired to pay which arise out of or relate in any manner to such activities
\nperformed by or an behalf of Developer on or with respect to the Project
\nPremises. Developer shall cause any of Developer’s contractors that conduct
\nsuch work and activities on the Project Premises to maintain insurance with
\nrespect to liability to third parties in amounts reasonably specified by City
\nand\/or EDC. The indemnity provisions of this Section 5.1 shall survive the
\n ———–
\ntermination of this Agreement.<\/p>\n
ARTICLE VI<\/p>\n
CONSTRUCTION PHASE<\/p>\n
6.1 General. Developer shall cause Contractor to construct the Casino
\n ——-
\nComplex and perform the Work pursuant to the Contractor Agreements and the
\nConstruction Documents under the supervision and control of Developer.<\/p>\n
6.2 Performance of the Work.
\n ———————– <\/p>\n
(a) Developer shall cause Contractor(s) to:<\/p>\n
40<\/p>\n
(1) Provide, furnish and maintain at its expense during the
\n construction period of the Casino Complex an appropriate separate facility
\n located at the project area for use by the PM and the PM’s staff as a field
\n office. Developer shall pay or reimburse EDC for the reasonable cost of
\n furnishing and equipping such facility for the PM and the PM’s staff. In
\n addition, until six (6) months following the Completion Date, Developer
\n shall pay or reimburse EDC for all documented fees and reasonable expenses
\n of EDC for the services of the PM and the PM’s staff, to the extent the PM
\n and PM’s staff are providing services to the Development. The EDC and
\n Developer shall agree no later than the Closing Date on a written budget
\n for the PM and the PM’s staff.<\/p>\n
(2) Deliver to the PM copies of the temporary and final
\n certificates of occupancy for the Casino Complex.<\/p>\n
(b) Developer shall give all notices and comply, and shall use all
\nreasonable efforts to cause Contractor and all Consultants to comply, with all
\nGovernmental Requirements applicable to the Work, and shall obtain, or use all
\nreasonable efforts to cause Contractors and\/or all Consultants, as applicable,
\nto obtain, all licenses or other authorizations necessary for the prosecution of
\nthe Work.<\/p>\n
(c) Developer shall take reasonable precautions to protect from damage
\ncaused by the Work, property adjacent to or in close proximity to the
\nDevelopment and shall be responsible for damage or injury to adjacent public and
\nprivate property resulting from its construction operations. This applies, but
\nis not limited, to public utilities, trees, lawn areas, buildings, monuments,
\nfences, pipes and underground structures and public streets (except natural wear
\nand tear of streets resulting from legitimate use thereof by Developer) and,
\nwherever such property is damaged due to the activities of Developer, it shall
\nbe restored promptly by Developer, at its own expense, to substantially the
\ncondition which existed immediately before such damage. In case of failure on
\nthe part of Developer to restore or take steps to restore and diligently
\nprosecute such restoration, or make good such damage or injury, EDC may, upon
\nthirty (30) days written notice to Developer, proceed to repair, rebuild, or
\notherwise restore such property as may be necessary, and the cost thereof shall
\nbe immediately due and payable to EDC.<\/p>\n
(d) Developer shall confine the equipment, apparatus, materials and
\nsupplies of Developer, the Contractor(s), the Architect(s), Consultants,
\nsubcontractors and all employed by them to the limits of the Project Site or as
\notherwise permitted by law or Permits.<\/p>\n
(e) City acknowledges that certain temporary construction easements or
\nother rights may be necessary for the performance of the Work, and City agrees
\nto provide, if available to the City without cost, the necessary temporary
\neasements or other rights subject to its reasonable approval. Any delay in
\nproviding or failure to provide such necessary easements that are available to
\nthe City without cost shall extend the applicable schedules to the extent the
\ndelay or failure delays the Work.<\/p>\n
41<\/p>\n
6.3 Commencement and Completion of the Work. Time being of the essence,
\n —————————————
\nDeveloper, after receipt of all required Permits, shall, subject to the terms
\nand provisions of this Agreement, prosecute the Work diligently, using such
\nmeans and methods of construction and sufficient employees as Developer
\nreasonably believes are necessary to maintain the progress of the Work
\nsubstantially in accordance with the Working Development Schedule and to
\nComplete the Casino Complex in accordance with the requirements of the
\nConstruction Documents no later than the Agreed Upon Opening Date. Subject to<\/p>\n
Section 7.2, Developer agrees to use commercially reasonable efforts to open to
\n———–
\nthe public for their intended use no less than ninety percent (90%) of the
\nretail and ninety percent (90%) of the restaurant space within nine (9) months
\nfollowing the Completion Date and the balance of the Casino Complex within a
\ncommercially reasonable time following the Completion Date.<\/p>\n
6.4 Contractor; Subcontractors.
\n ————————– <\/p>\n
(a) No later than the submittal of the Construction Documents to PM
\npursuant to Article IV, Developer shall submit to EDC the name of the
\n ———-
\nContractor and the form of the Contractor Agreement, which agreement shall
\ncontain a provision that, in the event of a default by Developer and upon a
\nrequest from EDC and City, the Contractor agrees to continue with the Work in
\naccordance with the Contractor Agreement provided that EDC pays the Contractor
\nfor work performed pursuant to this Section 6.4(a). EDC shall furnish copies of
\n ————–
\nall Contractor Agreements to the City.<\/p>\n
(b) Developer shall furnish to PM as promptly as practical after the
\ndelivery of the Construction Documents a list of all known subcontractors
\nwho will be performing the Work.<\/p>\n
(c) Developer shall cause appropriate provisions to be included in all
\nContractor Agreements and subcontracts pertaining to the Work to bind the
\nContractor(s) and all subcontractors to the terms of this Agreement, as
\napplicable to the Work of the Contractor(s) or the subcontractor(s).<\/p>\n
(d) Subject to Section 6.4(a), nothing in this Agreement or in the
\n ————–
\nConstruction Documents, including any Contractor Agreements, shall (i) create
\nany contractual relationship between City and\/or EDC and the Contractor(s) or
\nany subcontractor or (ii) liability against City and\/or EDC for labor, services
\nor materials of a Contractor or a subcontractor. No Contractor or subcontractor
\nis an agent, either expressed or implied, of City and\/or EDC.<\/p>\n
6.5 Claims and Liens. Developer shall notify PM as soon as practicable
\n —————-
\nafter Developer has actual knowledge of any filed construction lien arising from
\nany of the aforesaid Work.<\/p>\n
42<\/p>\n
6.6 Construction Matters.
\n ——————– <\/p>\n
(a) For the purpose of verifying compliance with this Agreement,
\nDeveloper and the Contractor(s) shall keep such full and detailed accounts as
\nshall be sufficient to verify the costs of the Casino Complex. Subject to
\nArticle XVII, City and\/or EDC shall be afforded access to Developer’s Books and
\n————
\nRecords and Developer shall preserve all such Books and Records pertaining to
\nthe Casino Complex for a period of six (6) years from creation of such Books and
\nRecords, or for such longer period as may be required by law. Developer shall
\ncause the Contractor Agreement to contain a provision similarly binding
\nContractor.<\/p>\n
(b) Developer shall cause the Contractor Agreement to bind
\nContractor(s) and subcontractors to comply with the applicable regulations of
\nthe U. S. Department of Labor, safety and health regulations for construction
\npromulgated under the Occupational Safety and Health Act of 1970 (Pub.L. 91-596)
\nand any other safety and health regulations applicable to the Work. Nothing in
\nthese laws shall be construed to supersede or in any manner affect any workers’
\ncompensation law or statutory rights, duties or liabilities of employers and
\nemployees under any law with respect to injuries, diseases or death of employees
\narising out of, or in the course of, employment.<\/p>\n
(c) The Developer and the Other Land-Based Casino Developers agree to
\nwork together with the City in good faith to assure the availability of adequate
\nparking without expense to the City, for persons attending events at Chene Park,
\nboth during construction of the Casino Complex and after Completion.<\/p>\n
6.7 Failure to Complete by Agreed Upon Opening Date. Time is of the
\n ———————————————–
\nessence, and a delay in Completion will result in substantial injury and
\nadditional costs to City and\/or EDC. If Completion occurs subsequent to the
\nAgreed Upon Opening Date, as it may be extended in accordance with the terms of
\nthis Agreement, Developer shall pay to City as the sole remedy of the City and
\nEDC and as liquidated damages (and not as a penalty), an amount per calendar day
\nfor each calendar day after the 30th calendar day following such Agreed Upon
\nOpening Date during which the Casino Complex is not Completed (the “Late
\nPeriod”) equal to the lesser of (i) $118,290, or (ii) (A) during periods in
\nwhich two (2) other land-based casinos are open to the public within the City,
\ntwenty-five percent (25%) of the City’s share of the aggregate Wagering Tax and
\nMunicipal Services fee derived from both such operations during the Late Period
\nand (B) during periods in which one (1) other land-based casino is open to the
\npublic within the City, forty percent (40%) of the City’s share of the Wagering
\nTax and Municipal Services fee derived from such operation during the Late
\nPeriod, divided by the number of days in the Late Period in each case reduced by
\n(x) one hundred twenty percent (120%) of the City’s share of the Wagering Tax
\nand (y) one hundred percent (100%) of the Municipal Services Fee derived from
\nthe operation of Developer’s Temporary Casino during the Late Period, provided
\nhowever during periods in which no Land-Based Casino Development is open to the
\npublic within the City, the figure in clause (i) shall be used for purposes of
\nthe computation. Developer shall under no circumstances have aggregate
\nliability hereunder and pursuant to Section 10.2(f) in excess of Fifty Million
\n —————
\nDollars ($50,000,000). The foregoing limitation on City’s and EDC’s remedies<\/p>\n
43<\/p>\n
shall in no way limit or diminish City’s or EDC’s rights or remedies under the
\nGuaranty and Keep Well Agreement.<\/p>\n
ARTICLE VII<\/p>\n
OTHER COVENANTS OF DEVELOPER<\/p>\n
7.1 Casino Complex Operation. Developer agrees to diligently operate the
\n ————————
\nCasino Complex and all other support facilities directly, or through Casino
\nComponent Manager\/Operators or Component manager(s), in a manner consistent with
\nFirst Class Casino Complex Standards and in compliance with this Agreement.<\/p>\n
7.2 Hours of Operation. Developer covenants that, from the Completion
\n ——————
\nDate and at all times thereafter, it shall operate the Casino Complex in
\ncompliance with all Governmental Requirements concerning hours of operation.
\nDeveloper covenants that, from the Completion Date and at all times thereafter
\nto: (i) maintain the maximum allowable hours for Casino Gaming Operations; (ii)
\ncontinuously operate and keep open for business to the general public twenty-
\nfour (24) hours each day, every day of the calendar year, the hotel Component
\nand the parking Component; and (iii) operate and keep open for business to the
\ngeneral public all Components (other than hotel Component, parking Component and
\nComponents where Casino Gaming Operations are conducted) in accordance with
\ncommercially reasonable hours of operation. Notwithstanding the foregoing, but
\nsubject to Developer’s obligations to obtain City’s approval for Material
\nAlterations, Developer shall have the right from time to time in the ordinary
\ncourse of business and without advance notice to City, to close portions of any
\nComponent (x) for such reasonable periods of time as may be required for
\nrepairs, Alterations, maintenance, remodeling, or for any reconstruction
\nrequired because of casualty, condemnation, governmental order or Force Majeure
\nor (y) during non-peak hours or as a result of seasonal demands in accordance
\nwith usual and customary casino operating practices. The obligations of
\nDeveloper under this Section 7.2 shall lapse and be of no further force or
\n ———–
\neffect ten (10) years after the Execution Date.<\/p>\n
44<\/p>\n
7.3 Radius Restriction.
\n —————— <\/p>\n
(a) For purposes of this Section 7.3, “Restricted Party” means any
\n ———–
\nPerson who directly or indirectly owns any interest in Developer or in any
\nCasino Manager which is an Affiliate of Parent Company other than any Person who
\nis a Restricted Party due solely to that Person’s ownership of (x) a direct or
\nindirect interest in a Publicly Traded Corporation or (y) five percent (5%) or
\nless direct or indirect interest in Developer. Commencing on the Execution Date
\nand continuing for the shorter of (x) such period as casino gaming activities
\nare permitted in the City; or (y) two (2) years after the Termination Date,
\nneither Developer, Parent Company, any Casino Manager which is an Affiliate of
\nParent Company, Developer or any Restricted Party, nor any Restricted Party,
\nshall directly or indirectly (i) manage, operate or become financially
\ninterested in any casino within the Radius other than the Casino Complex or the
\nTemporary Casino, (ii) make application for any franchise, permit or license to
\nmanage or operate any casino within the Radius other than the Casino Complex or
\nthe Temporary Casino or (iii) respond positively to any request for proposal to
\ndevelop, manage, operate or become financially interested in any casino within
\nthe Radius (the “Radius Restriction”) other than the Casino Complex or the
\nTemporary Casino, provided that with respect to any Casino Manager which is an
\nAffiliate of Parent Company, Developer or any Restricted Party, the period set
\nforth in clause (y) shall be two (2) years after the termination of its Casino
\nComponent Management Agreement. Developer shall cause Parent Company, any Casino
\nManager which is an Affiliate of Parent Company, Developer or any Restricted
\nParty and each Restricted Party requested by City, to execute and deliver to
\nCity an agreement to abide by the Radius Restriction. The Radius Restriction
\nshall survive the termination of this Agreement.<\/p>\n
(b) If Parent Company, Developer or any Restricted Party acquires or
\nis acquired by a Person such that, but for the provisions of this Section
\n ——-
\n7.3(b), either Parent Company, Developer or any Restricted Party or the
\n——
\nacquiring Person would be in violation of the Radius Restriction as of the date
\nof acquisition, then such party shall have five (5) years in which to comply
\nwith the Radius Restriction. In addition, if the laws of the State are amended
\nto allow more than three (3) casinos within the City, then neither Developer nor
\nany Restricted Party shall be deemed to be in violation of the Radius
\nRestriction solely by reason of an ownership or other interest in any such
\nadditional casinos.<\/p>\n
(c) Notwithstanding anything in Section 7.3(a) to the contrary,
\n ————–
\nDeveloper shall have the right to (i) make loans to the Other Land-Based Casino
\nDevelopers provided that (x) such loans are not secured, in whole or in part, by
\nthe Casino Complex, any Component or any direct or indirect ownership interest
\nin Developer (other than by a Permitted Interest, as herein defined) and (y) the
\nDeveloper, as the result of such loans, is given no ability to control or manage
\nthe affairs of the borrower; and (ii) purchase such ownership interest in any
\nother Land-Based Casino Development as and to the extent permitted under the Act
\n(a “Permitted Interest”).<\/p>\n
(d) It is the desire of the parties that the provisions of this
\nSection be enforced to the fullest extent permissible under the laws and public
\npolicies in each jurisdiction in which enforcement might be sought. Accordingly,
\nif any particular portion of this Section shall ever be adjudicated as invalid
\nor unenforceable, or if the application thereof to any party or<\/p>\n
45<\/p>\n
circumstance shall be adjudicated to be prohibited by or invalidated by such
\nlaws or public policies, such section or sections shall be (i) deemed amended to
\ndelete therefrom such portions so adjudicated or (ii) modified as determined
\nappropriate by such a court, such deletions or modifications to apply only with
\nrespect to the operation of such section or sections in the particular
\njurisdictions so adjudicating on the parties and under the circumstances as to
\nwhich so adjudicated.<\/p>\n
(e) The obligations of Developer under this Section 7.3 shall lapse
\n ———–
\nand be of no further force or effect ten (10) years after the Closing Date.<\/p>\n
7.4 Casino Component Management Agreements.
\n ————————————– <\/p>\n
(a) Developer shall not enter into any agreement or contract for the
\noperation and\/or management of the Casino or the Casino Complex without in each
\ncase receiving the approval of City. Notwithstanding the foregoing, the
\nDeveloper shall have the right to enter into any agreement or contract for the
\noperation and\/or management of any Component (other than the Casino) without the
\napproval of the City, provided that with respect to the hotel Component and\/or
\nparking Component, Developer either first complies with Section 3.7 or the
\n ———–
\nagreement or contract is entered into with an Affiliate during such period as
\nDeveloper meets or exceeds the Performance Threshold. Once approved by City, no
\nCasino Component Manager\/Operator Agreement for a Covered Component requiring
\nCity’s approval to be entered into may be assigned, and Developer shall not
\naccept the assignment of, any such Casino Component Manager\/Operator Agreement
\nwithout the prior written consent of City.<\/p>\n
(b) In the event that a Casino Component Manager\/Operator shall desire
\nto assign or transfer a Casino Component Management Agreement and such transfer
\nrequires City’s consent, the Casino Component Manager\/Operator shall first make
\napplication to City, setting forth the name or names of the proposed assignee
\nand an affidavit from the proposed assignee identifying all Persons having
\ninterests in the assignee (provided, however, that if the assignee is a Publicly
\nTraded Corporation only those Persons known to have an ownership interest in
\nassignee of five percent (5%) or more need be identified) and their respective
\naddresses and that the proposed assignee meets the following minimum
\nqualifications: (i) possesses or will possess within the time limits established
\nby the respective Governmental Authority, all required permits, approvals and
\nlicenses to own and operate the applicable Component; and (ii) possesses at
\nleast three (3) years prior experience in operating facilities of a character
\ncomparable to the applicable Component in each of at least two (2) other
\nlocations or otherwise demonstrates to the reasonable satisfaction of City that
\nit possesses comparable experience. Evidence of licensing by the State, if
\napplicable, and a resume of prior operating experience shall also be provided.
\nThe foregoing are intended to establish minimum criteria for consideration and
\nCity shall not be required to grant approval of an assignee solely because that
\nassignee satisfies the above criteria if City reasonably determines that such
\nassignee is not qualified. At such times as Developer fails to meet or exceed
\nthe Performance Threshold, and unless a Performance Guaranty from an Acceptable
\nGuarantor is in full force and effect, Developer shall not amend or modify any
\nagreement or contract to operate and\/or manage any Covered Component without in
\neach case receiving the prior written consent of City, which consent shall not
\nbe unreasonably withheld.<\/p>\n
46<\/p>\n
(c) Any consent by City under this Subsection shall apply only to the
\nspecific transaction thereby authorized and shall not relieve the Casino
\nComponent Manager\/Operator from the requirement of obtaining any prior consent
\nof City for any future assignment.<\/p>\n
7.5 Inaugural Ceremonies. Developer shall notify and consult with the
\n ——————–
\nMayor and City Council with respect to planning inaugural ceremonies for the
\nCasino Complex.<\/p>\n
7.6 Marketing Cooperation and Coordination. Developer shall use
\n ————————————–
\ncommercially reasonable efforts to coordinate marketing efforts between City and
\nDeveloper, especially with reference to the Metropolitan Detroit Convention and
\nVisitors Bureau (“MDCVB”) and the blocking of rooms for convention purposes.
\nSuch marketing program may include direct sales, direct mail and joint media
\nadvertising promotion, public relations and publicity efforts. Developer agrees
\nto construct, at its expense, a visitor information center (the “Center”) in the
\nCasino Complex. The Center shall be located in a visible location and shall
\nconsist of no less than one hundred (100) square feet. The plan and design of
\nthe Center shall be subject to the reasonable review and approval of the MDCVB.
\nDeveloper shall maintain the Center but shall have no obligation to staff it.<\/p>\n
7.7 Capital Maintenance Fund.
\n ———————— <\/p>\n
(a) Subject to Section 3.7, Developer shall establish or cause to be
\n ———–
\nestablished a reserve for capital replacements and\/or enhancements to be funded
\nin accordance with Exhibit 7.7(a) (the “Capital Maintenance Fund”). The Capital
\n ————–
\nMaintenance Fund shall be established as a segregated account as an assurance
\nfund to guarantee necessary capital replacements and shall be utilized first for
\nany necessary capital replacements to the Development. Any amounts remaining in
\nthe Capital Maintenance Fund at the close of each Fiscal Year shall be carried
\nforward and shall be retained for use in subsequent Fiscal Years. If the amount
\nin the Capital Maintenance Fund is insufficient at the time the funds are
\nplanned for expenditure as otherwise provided in subparagraph (b), Developer
\nshall supply or cause to be supplied such shortfall in order to complete the
\ncapital expenditure. If an amount in excess of the Capital Maintenance Fund is
\nexpended in any Fiscal Year it shall be credited to the Developer’s obligation
\nto fund the Capital Maintenance Fund in future Fiscal Years or to cure a
\nshortfall in any prior Fiscal Year, as directed by Developer, provided that no
\ncure shall be permitted if, prior to such cure, City has delivered written
\nnotice of default to Developer for failure to meet its obligations under this
\nSection 7.7. The obligations of Developer under this Section 7.7(a) shall lapse
\n———– ————–
\nand be of no further force or effect seven (7) years after the Execution Date.<\/p>\n
(b) Developer shall make all capital expenditures necessary to
\nmaintain the Casino Complex up to First Class Casino Complex Standards
\nregardless of the amounts in the Capital Maintenance Fund. In the event City
\ndetermines in good faith that such standard is not being maintained, City shall
\nprovide Developer with written notice thereof.<\/p>\n
47<\/p>\n
7.8 Maintenance and Repairs.
\n ———————– <\/p>\n
(a) Developer shall, at its sole cost and expense, keep and maintain
\nthe Development (other than Infrastructure Improvements not owned by Developer)
\nup to First Class Casino Complex Standards, ordinary wear and tear and
\ncasualties excepted, and in conformity with all applicable Governmental
\nRequirements, including the following to the extent located within the
\nDevelopment boundaries: the Improvements (other than Infrastructure Improvements
\nnot owned by Developer), landscaping, parks, grassy areas, streets, driveways,
\ncurbs, and sidewalks; and shall keep and maintain the entire Development and all
\nlandscaping and undeveloped areas thereon, in a clean, sanitary, orderly and
\nattractive condition, free from weeds, rubbish and debris. Developer shall also
\nmaintain all sidewalks that abut the Development even if not located within the
\nDevelopment boundaries. Developer shall also adopt and maintain such standards
\nof property maintenance and housekeeping up to First Class Casino Complex
\nStandards.<\/p>\n
(b) Upon acquisition of the Public Land by the City:<\/p>\n
(1) The City shall pay and be responsible for the design and
\n improvement of the Public Land.<\/p>\n
(2) The City shall consult with the Developer with respect to
\n such design and improvement and use reasonable efforts to coordinate its
\n efforts with those of Developer so as to avoid conflicts between the
\n scheduling of construction of the Public Land improvements and the Casino
\n Complex.<\/p>\n
(3) The Developer, together with the Other Land-Based Casino
\n Developers, shall establish a “Maintenance Trust” or equivalent entity (the
\n “Trust”) to which Developer will contribute funds upon establishing the
\n Trust and on each anniversary thereafter until termination of the
\n Agreement. The amount contributed shall be determined pursuant to good
\n faith negotiations among the parties applying the standard set forth in
\n Section 7.8(b)(4).
\n —————– <\/p>\n
(4) The Trust shall be responsible for the maintenance of the
\n Public Land (other than Chene Park or St. Aubin marina) in a clean,
\n sanitary, orderly and attractive condition, free from weeds, rubbish and
\n debris.<\/p>\n
(5) The Trust shall engage third parties to satisfy its
\n maintenance obligations.<\/p>\n
(6) The Trust shall be managed by designees of the City and by
\n designees of parties contributing to the Trust.<\/p>\n
(7) The obligations imposed on Developer pursuant to this Section
\n ——-
\n 7.8(b) are Developer’s sole obligations with respect to maintenance of the
\n ——
\n Public Land.<\/p>\n
48<\/p>\n
(8) The obligations imposed on Developer pursuant to this Section
\n ——-
\n 7.8(b) shall not in themselves give rise to an obligation by Developer to
\n ——
\n Respond to a Release or to indemnify or reimburse City or EDC with respect
\n to any cost incurred in connection with any Environmental Claim pertaining
\n to the Public Land.<\/p>\n
7.9 Memorandum of Agreement; Covenants to Run with the Land.
\n ——————————————————- <\/p>\n
(a) The parties agree that the Memorandum of Agreement shall not in
\nany circumstances be deemed to modify or to change any of the provisions of this
\nAgreement.<\/p>\n
(b) The restrictions imposed by and under Section 7.17 (collectively,
\n ————
\nthe “Restrictions”) will be construed and interpreted by the parties hereto as
\ncovenants running with the land. Pursuant hereto the Developer, by accepting the
\ndeed to the Project Premises accepts same subject to such Restrictions and
\nagrees for itself, its successors and assigns to be bound by each of such
\nRestrictions. The City shall have the right to enforce such Restrictions against
\nthe Developer, its successors and assigns to or of the Project Premises or any
\npart thereof or any interest therein.<\/p>\n
7.10 Financial Statements; Annual Business Plan.
\n —————————————— <\/p>\n
(a) Upon the earlier of the completion of the Temporary Casino or the
\nCompletion Date, Developer shall provide City with (i) unaudited Financial
\nStatements for each calendar quarter within sixty (60) days after the end of
\neach quarter certified as accurate in all material respects by Developer, and
\n(ii) audited Financial Statements prepared in accordance with GAAP within one
\nhundred twenty (120) days after the end of each Fiscal Year.<\/p>\n
(b) Subject to Section 3.7, at such times as Developer fails to meet
\n ———–
\nor exceed the Performance Threshold, Developer shall, within thirty (30) days
\nthereafter, prepare and make available to City for review an Annual Business
\nPlan for the upcoming twelve (12) month period. The City shall be allowed to
\nreview and make notes from the Annual Business Plan provided that City shall use
\nreasonable efforts to keep the information contained in the Annual Business Plan
\nconfidential. City and other relevant representatives and the relevant Casino
\nComponent Manager\/Operators shall meet within thirty (30) days after
\npresentation of the Annual Business Plan to City to discuss those aspects of the
\nAnnual Business Plan addressing marketing, revenue payments and other relevant
\nissues.<\/p>\n
7.11 Alterations. After the Completion Date, Developer shall not make or
\n ———–
\ncause or permit the making of any Material Alterations in or to the Development
\nunless the City shall have given its prior written approval and consent which
\nshall not be unreasonably withheld. Notwithstanding the foregoing, due to the
\nimprecise ability to define “gaming floor area,” City agrees that if in good
\nfaith the Developer defines its gaming floor area in a manner that in City’s
\njudgment varies from the Developer’s commitment to have one hundred thousand
\n(100,000) square feet of gaming floor area by ten percent (10%) or less, such
\nvariance shall not be considered a Material Alteration. In addition, if at any
\ntime City authorizes either or both of the Other Land-Based Casino Developers to
\nincrease the size of its respective gaming floor area (an<\/p>\n
49<\/p>\n
“Authorized Increase”), Developer shall thereupon be authorized to increase the
\nsize of its gaming floor area by the same number of square feet as set forth in
\nany Authorized Increase. The obligations of Developer under this Section 7.11
\n ————
\nshall lapse and be of no further force or effect ten (10) years after the
\nExecution Date.<\/p>\n
7.12 Space Leases. Subject to Section 3.7, during such periods as
\n ———— ———–
\nDeveloper fails to meet or exceed the Performance Threshold, Developer shall
\nnotify the City of any new Space Lease or any material amendment or modification
\nof any existing Space Lease.<\/p>\n
7.13 Negative Covenants. Developer covenants that except as indicated or
\n ——————
\nas otherwise required by applicable law, at all times during the term of this
\nAgreement:<\/p>\n
(a) So long as Developer is operating the Project Premises and the
\nprimary business conducted thereon includes casino gaming activities: (i)
\nDeveloper will not, except as required by applicable law, make any change in its
\norganizational structure which would result in either (x) the Local Partner
\nhaving less than one-third (1\/3rd) representation on the governing body of
\nDeveloper (which shall have no fewer than nine (9) members), or (y) the material
\ndiminution of the powers of such governing body; and (ii) the composition of
\nsuch governing body shall include not less than a majority of African-Americans.<\/p>\n
(b) Developer will not, upon an Event of Default or during the
\ncontinuance of any event which, with the giving of notice or passage of time or
\nboth, could become an Event of Default, declare or pay any dividends or make any
\nother payments or distributions to any members of Developer or their respective
\nAffiliates, except for Permitted Affiliate Payments.<\/p>\n
(c) During the Restricted Period Developer (i) will prohibit a
\nTransfer by Partners Detroit, L.L.C. directly or indirectly of its ownership
\ninterest in Developer and (ii) will cause Partners Detroit, L.L.C. to prohibit a
\nTransfer by a Local Partner of any direct or indirect ownership interest in
\nPartners Detroit, L.L.C., except for a “Permitted Transfer.” For purposes of
\nthis Section 7.13(c), a “Permitted Transfer” means any Transfer by a Local
\n —————
\nPartner of a direct or indirect ownership interest in Partners Detroit, L.L.C.
\nwhich meets any of the following: (1) the transferee of the interest is a
\nresident of the State; (2) the transferee of the interest is a Local Partner;
\n(3) the Transfer is being made due to the economic hardship of the Local
\nPartner; (4) the transferee of the interest is a spouse, child or parent
\n(“Family Members”) of a Local Partner; (5) the transferee of the interest is an
\nentity whose beneficial owners consist solely of Local Partners and\/or Family
\nMembers; (6) if the transferor is an entity, the transferees of the interest are
\nthe beneficial owners of such transferor; (7) the Transfer is by operation of
\nlaw; (8) the Transfer is on account of a pledge to (x) an institutional lender
\nor (y) any Person who owns a direct or indirect interest in Developer; (9) the
\ntransferee of the interest is Developer or any of its Affiliates and the failure
\nto purchase the interest would result in any Person who directly or indirectly
\nowns an interest in Developer becoming ineligible to hold a Certificate of
\nSuitability or Casino License as defined in the Act or otherwise suffering a
\nloss, suspension or inability to obtain a gaming license in any jurisdiction in
\nwhich Developer, such Affiliate or Person conducts or proposes to conduct gaming
\noperations; or (10) the transferee is the Developer or its Affiliate in the
\ncircumstance in which the transferor is in default under its organizational
\nagreements and<\/p>\n
50<\/p>\n
the Transfer is made thereunder. In addition, for purposes of this Section
\n ——-
\n7.13(c), a “Permitted Transfer” includes a Transfer or series of related
\n——-
\nTransfers by Partners Detroit, L.L.C. and\/or Local Partners which, when
\naggregated, equals forty-nine percent (49%) or less of the ownership interest of
\nPartners Detroit, L.L.C. in Developer.<\/p>\n
(d) Developer shall not enter into any Financing unless all parties
\nunder the Financing having a right to foreclose on all or part of the
\nDevelopment execute an agreement in form and substance satisfactory to the City
\nin the exercise of its reasonable judgment which is consistent with Section 3.4.
\n ———–<\/p>\n
7.14 Notification of Certain Events. As soon as practicable after
\n ——————————
\nobtaining knowledge or notice thereof, Developer shall deliver to City, together
\nwith copies of all relevant documentation with respect thereto:<\/p>\n
(a) Notice of any matured event of default under the Initial Financing
\nand any other financing related to the Development.<\/p>\n
(b) Notice of all summons, citations, directives, complaints, notices
\nof violation or deficiency, and other communications from any Governmental
\nAuthority other than City or the Board, asserting a material violation of
\nGovernmental Requirements applicable to the Development.<\/p>\n
(c) Notice of any litigation or proceeding in which Developer is a
\nparty if an adverse decision therein would, in Developer’s reasonable opinion,
\nhave a material adverse effect on Developer’s ability to perform its obligations
\nhereunder.<\/p>\n
(d) Notices received by Developer from the Board which in Developer’s
\nreasonable opinion assert a material violation of the Act.<\/p>\n
7.15 Veracity of Statements. Except (i) as otherwise indicated herein; and
\n ———————-
\n(ii) for statements of third parties (other than Affiliates) which Developer has
\nreasonable grounds to believe are accurate and for projections which Developer
\nhas reasonable grounds to believe are reasonable, no representation or warranty
\nof Developer, or any certification or report furnished by Developer to City
\nand\/or EDC pursuant hereto which, if not materially accurate, would have a
\nmaterial adverse effect on the Development, when read in conjunction with the
\nother representations, warranties and certifications, contains or will contain,
\nany untrue statement of a material fact, or will omit any material fact that
\nwould cause such representation, warranty, statement or certification to be
\nmaterially misleading, provided that representations, warranties and
\ncertifications made as of a specified date shall reflect facts and circumstances
\nknown to Developer as of such specified date.<\/p>\n
7.16 Certification of Performance Threshold; Financial Covenants. By the
\n ———————————————————–
\ntwentieth (20th) day of each month commencing with the twenty-fifth (25th) full
\nmonth subsequent to the Completion Date, Developer shall deliver to the City
\nDeveloper’s certificate stating (i) whether the Performance Threshold, Debt
\nCoverage Ratio and Leverage Ratio have or have not each been<\/p>\n
51<\/p>\n
met for the previous twelve (12) month period ending on the last day of the
\npreceding month; and (ii) the amount of Net Worth as of the last day of the
\npreceding month. If Developer shall fail to deliver such certificate within ten
\n(10) Business Days after Developer’s receipt of written notice of City’s failure
\nto receive such certificate, Developer shall be deemed to be in breach of
\nSection 3.2 and shall be deemed to have failed to meet the Performance
\n———–
\nThreshold. The obligations of Developer under this Section 7.16 shall lapse and
\n ————
\nbe of no further force or effect ten (10) years after the Execution Date.<\/p>\n
7.17 Use of Project Premises. So long as casino gaming activities would be
\n ———————–
\npermitted by law to operate on the Project Premises (assuming the existence of a
\nvalid Casino License), the primary business to be operated on the Project
\nPremises shall include casino gaming activities. The obligations of Developer
\nunder this Section 7.17 shall lapse and be of no further force or effect thirty-
\n ————
\nfive (35) years after the Execution Date.<\/p>\n
ARTICLE VII<\/p>\n
REPRESENTATIONS AND WARRANTIES
\n OF DEVELOPER<\/p>\n
8.1 Representations and Warranties of Developer. Subject to Section 7.15,
\n ——————————————- ————
\nDeveloper represents and warrants to City that each of the following statements
\nis true and accurate as of the Execution Date, except as otherwise indicated
\nherein or in the Exhibits referenced herein:<\/p>\n
(a) Developer is a limited liability company duly organized and
\nvalidly existing under the laws of Delaware, and has all requisite power and
\nauthority to enter into and perform its obligations under this Agreement and all
\nother agreements and undertakings to be entered into by Developer in connection
\nherewith.<\/p>\n
(b) This Agreement and, to the extent such documents presently exist
\nin a form accepted by City and\/or EDC and Developer, each document contemplated
\nor required by this Agreement to which Developer is a party has been duly
\nauthorized by all necessary action on the part of, and has been or will be duly
\nexecuted and delivered by, Developer; is binding on Developer; and is
\nenforceable against Developer in accordance with its terms, subject to
\napplicable principles of equity and insolvency laws.<\/p>\n
(c) Attached hereto as Exhibit 8.1(c), is a full and complete
\n ————–
\ndescription of the organizational structure of Developer and its Affiliates
\nincluding the names and general backgrounds of all officers, directors and
\nowners of Developer and any Person that Controls Developer, except that if
\nDeveloper or an Affiliate is a Publicly Traded Corporation, only the names and
\ngeneral backgrounds of owners beneficially owning greater than five percent (5%)
\nof the shares of the Publicly Traded Corporation need be identified, including:<\/p>\n
52<\/p>\n
(1) Whether and to what extent the officers, directors,
\n shareholders or members are a Minority, a Detroit resident, a Detroit-Based
\n Business, a Detroit Resident Business or a Small Business Concern.<\/p>\n
(2) Whether Developer or an Affiliate holds a gaming license and
\n in which jurisdiction the license is held, and whether Developer or an
\n Affiliate has ever been denied a gaming license or withdrawn an application
\n for a gaming license.<\/p>\n
(d) Attached hereto as Exhibit 8.1(d), is a full and complete
\n ————–
\ndescription of Developer’s capabilities, experience and key personnel to the
\nextent presently identified who Developer anticipates will be assigned to each
\nComponent of the Casino Complex.<\/p>\n
(e) Attached hereto as Exhibit 8.1(e), is a full and complete
\n ————–
\ndescription of projected cost budgets for the financing, design, construction,
\nfurnishing and equipping of each Component of the Casino Complex, including,
\nwithout limitation, all soft costs, fees, land acquisition costs, funding of
\nreserve requirements, costs of projected Infrastructure Improvements and all
\nmaterial assumptions upon which the foregoing are based.<\/p>\n
(f) Attached hereto as Exhibit 8.1(f), is a summary of certain
\n ————–
\nprojections of Developer’s operations for the first five (5) years of
\noperations; provided, however, that specific projections of balance sheets,
\nincome statements and cash flow statements are highly confidential and
\nproprietary to Developer and Parent Company and are not included in the Exhibit.<\/p>\n
(g) Attached hereto as Exhibit 8.1(g), is a full and complete
\n ————–
\ndescription of existing and anticipated sources of financing for the Casino
\nComplex, including the Initial Financing specified in Section 3.1 hereof,
\n ———–
\npertinent details such as terms, rates, and security covenants, whether
\nDeveloper has or will acquire all or some of its financing from a Detroit-Based
\nBusiness, a Detroit Resident Business or a Small Business Concern; and
\nDeveloper’s plan, if any, for utilization of Detroit-based Minority-owned
\nfinancial institutions in servicing Developer’s financial needs.<\/p>\n
(h) Attached hereto as Exhibit 8.1(h), is a full and complete
\n ————–
\ndescription of current detailed financial statements for each gaming operation
\ncurrently owned or operated by Developer.<\/p>\n
(i) Attached hereto as Exhibit 8.1(i), is a full and complete
\n ————–
\ndescription of Developer’s concept for the proposed Development, including:<\/p>\n
(1) The proposed development site or location for each Component
\n of the Casino Complex, a legal description of the property boundaries,
\n dimensions and total acreage for each such Component of the Casino Complex,
\n as well as any ancillary facilities proposed.<\/p>\n
(2) The size of each Component of the Casino Complex detailing:
\n the number and types of gaming facilities; the number and types of
\n restaurants; a description of<\/p>\n
53<\/p>\n
any hotel, including the number of rooms and whether such hotel will be
\n available for use by non-casino patrons; the number and types of lounges or
\n bars; the number and types of retail shops; the number and types of
\n ancillary entertainment or recreational facilities planned; a description
\n of any convention facilities; and a description of any other facilities
\n proposed.<\/p>\n
(3) Architectural matters, including drawings, the name(s) of the
\n architect(s); the floor plans (discussing space allocations and major
\n functions such as gaming floor, back-of-house, circulation, accessibility
\n and exiting); building elevations (showing heights, relative scale and
\n compatibility with adjacent Components); landscaping; and design theme.<\/p>\n
(4) Proposed plans for employee, patron and bus parking; tour bus
\n and valet drop-off facilities; service vehicle parking; satellite parking
\n facilities; and other infrastructure related to the Casino Complex.<\/p>\n
(5) The proposed phasing plan, the proposed sequence of the
\n phases and the approximate dates of beginning and completion of development
\n of the entire project.<\/p>\n
(6) Developer’s commitment to adhere to applicable zoning
\n requirements adopted by City.<\/p>\n
(j) Attached hereto as Exhibit 8.1(j), is a full and complete
\n ————–
\ndescription of the amount and manner of investment or other contributions
\nDeveloper will make to promote economic growth and revitalize the district in
\nwhich the Development will be located; to create new jobs and contribute to the
\nsupport of existing employment opportunities; to attract new businesses,
\ntourists and visitors to City or to the district in which the Development will
\nbe located.<\/p>\n
(k) Attached hereto as Exhibit 8.1(k), is a full and complete
\n ————–
\ndescription of Developer’s plans for assisting current businesses that may
\nexperience employee shortages due to their employees accepting employment
\nrelating to the Development.<\/p>\n
(l) Attached hereto as Exhibit 8.1(l), is a full and complete
\n ————–
\ndescription of the manner in which the Development will enhance City as a
\ndesirable location for tourists, conventions, families and urban life and the
\nmanner in which the Development will encourage pedestrian linkages with other
\nbusiness, economic and entertainment activities in the area in which the
\nDevelopment is to be located.<\/p>\n
(m) Attached hereto as Exhibit 8.1(m), is a full and complete
\n ————–
\ndescription of the amount of investment or other contributions Developer will
\nmake to promote economic growth and contribute to the revitalization of
\neconomically depressed areas of City, other than the area in which the
\nDevelopment is to be located; to create new jobs and contribute to the support
\nof existing employment opportunities; and to attract new businesses, tourists
\nand visitors to those other areas.<\/p>\n
(n) Attached hereto as Exhibit 8.1(n), is a full and complete
\n ————–
\ndescription of Developer’s plan to market the Casino Complex and Developer’s
\nintent to cooperate and consult<\/p>\n
54<\/p>\n
with City, the Metropolitan Detroit Convention and Visitor’s Bureau or other
\nregional tourism and marketing organizations to implement a comprehensive and
\nuniform system of marketing City as an entertainment destination.<\/p>\n
(o) Attached hereto as Exhibit 8.1(o), is a summary of the presently
\n ————–
\nprojected key management and other staff for each functional area of operation
\nbroken down by the number of full-time and part-time positions, and for each job
\nclassification, its respective total estimated salaries and benefits.<\/p>\n
(p) Attached hereto as Exhibit 8.1(p), is a full and complete
\n ————–
\ndescription of Developer’s program for staff training and development and staff
\nrelations.<\/p>\n
(q) Attached hereto as Exhibit 8.1(q), is a full and complete
\n ————–
\ndescription of Developer’s Equal Opportunity Employment Plan to recruit, train
\nand upgrade Detroit residents, Minorities and women for all employment
\nclassifications, including but not limited to:<\/p>\n
(1) How Developer will establish contacts in City to foster an
\n interest in casino careers among Detroit residents, Minorities and women,
\n and publicize and market the Casino Complex employment opportunities.<\/p>\n
(2) Any proposed systematic training program to prepare Detroit
\n residents, Minorities and women, among others, with the life skills and the
\n employment skills necessary for responsible jobs within the Casino Complex.<\/p>\n
(r) Attached hereto as Exhibit 8.1(r), is a full and complete
\n ————–
\ndescription of Developer’s commitment to hire construction contractors who agree
\nto include in their construction contracts an express term that the rates, wages
\nand fringe benefits to be paid to each class of construction mechanics and each
\nof their subcontractors shall be not less than the rates, wages and fringe
\nbenefits prevailing in City as established by the most recent survey of the
\nMichigan Department of Labor for prevailing wage determination under Act 166,
\nP.A. 1965 (Act 166, P.A. 1965), MCLA 408.551 et. seq., MSA 17.256(a), et. seq.
\n — — — — <\/p>\n
(s) Attached hereto as Exhibit 8.1(s), is a full and complete
\n ————–
\ndescription of Developer’s commitment to hire contractors who will commit to the
\ngoal of maximizing to the greatest extent possible the number of Detroit
\nresident apprentices who advance to journeymen status by agreeing themselves,
\nand requiring their contractors to agree to, and to the greatest extent possible
\nutilizing unions that do or will, operate apprentice programs on the Development
\nconstruction sites that are open to all residents of City.<\/p>\n
(t) Attached hereto as Exhibit 8.1(t), is a full and complete
\n ————–
\ndescription of Developer’s commitment to hire contractors who agree to implement
\nan Equal Opportunity Employment Plan conforming to all applicable laws and
\nconsistent with City’s Executive Order 22.<\/p>\n
(u) Attached hereto as Exhibit 8.1(u), is a full and complete
\n ————–
\ndescription of Developer’s commitment to purchase goods and services from
\nDetroit-Based Businesses, Detroit<\/p>\n
55<\/p>\n
Resident Businesses or Small Business Concerns, which to the greatest extent
\npossible should be not less than fifty one percent (51%) of the total dollar
\nvalue of all purchases of goods and services.<\/p>\n
(v) Attached hereto as Exhibit 8.1(v), is a full and complete
\n ————–
\ndescription of the proposed major transportation and circulation routes,
\nincluding:<\/p>\n
(1) A plan for the proposed use of regional airports, and
\n specifically the Detroit City Airport;<\/p>\n
(2) A plan for the proposed modifications and improvements to the
\n existing roads necessary to accommodate the anticipated number of trips to
\n and from the Casino Complex each day by employees, visitors and buses,
\n including the size of regional transportation facilities to be constructed
\n or implemented, the estimated period of construction, the approximate cost
\n and the proposed funding source.<\/p>\n
(3) Developer’s proposed plan for traffic control measures, such
\n as pedestrian-grade street crossing systems, traffic control devices, bus
\n and other large vehicle turnout facilities, drainage mitigation and street
\n lighting systems, the estimated period of construction, approximate cost
\n and the proposed funding source.<\/p>\n
(w) Attached hereto as Exhibit 8.1(w), is a full and complete
\n ————–
\ndescription of Developer’s proposed measures for transportation demand
\nmanagement and transportation supply management, including ride-sharing, mass
\ntransit and other transportation conservation measures, which should be based on
\nCity’s requirements and City’s traffic analysis studies conducted in conjunction
\nwith casino development within City.<\/p>\n
(x) Attached hereto as Exhibit 8.1(x), is a full and complete
\n ————–
\ndescription of Developer’s plan for any anticipated improvements to the existing
\nregional water facilities necessary to serve the Development, the estimated
\nperiod of construction and the approximate cost of such construction.<\/p>\n
(y) Attached hereto as Exhibit 8.1(y), is a full and complete
\n ————–
\ndescription of Developer’s plan for any anticipated improvements to the existing
\nregional sewer facilities necessary to serve the Development, the estimated
\nperiod of construction and the approximate cost of such construction.<\/p>\n
(z) Attached hereto as Exhibit 8.1(z), is a full and complete
\n ————–
\ndescription of whether, and to what extent, Developer is willing to consider
\ncontracting for power service with City of Detroit Public Lighting Department
\n(“PLD”), provided that PLD furnishes such service at rates and quality
\ncomparable to those otherwise charged by competing electric utilities.<\/p>\n
(aa) Attached hereto as Exhibit 8.1(aa), is a full and complete
\n —————
\ndescription of Developer’s plan for proposed improvement to City’s existing fire
\nprotection services that would serve the Development, including the number of
\nfire stations to be constructed or modified and their location, the estimated
\nperiod of construction and the approximate cost of such construction.<\/p>\n
56<\/p>\n
(bb) Attached hereto as Exhibit 8.1(bb), is a full and complete
\n —————-
\ndescription of Developer’s plan for proposed improvements to City’s existing
\npolice protection services that would serve the Development, including the
\nnumber of police precincts to be constructed or modified and their location, the
\nestimated period of construction and the approximate cost of such construction.<\/p>\n
(cc) Attached hereto as Exhibit 8.1(cc), is a full and complete
\n —————
\ndescription of Developer’s plan for providing for or enhancing existing child
\ncare services to ensure that such services are reasonably affordable and
\nappropriate for its prospective employees, including any estimated period of
\nconstruction of such facilities, and the approximate cost of such construction.<\/p>\n
(dd) Attached hereto as Exhibit 8.1(dd), is a full and complete
\n —————
\ndescription of Developer’s plan for enhancing existing services for treatment of
\ncompulsive behavior disorders to ensure that they are reasonably affordable and
\nappropriate for its prospective employees and their affected families and for
\npatrons with compulsive gaming behaviors and their affected families. The plan
\nshould include the types of public education and problem gambling prevention
\nstrategies and prevention and education strategies for employees that would be
\nimplemented as part of the operation of the Casino or Casino Complex, the
\nestimated period of implementation of the plan and the approximate cost of the
\nplan.<\/p>\n
(ee) Attached hereto as Exhibit 8.1(ee), is a full and complete
\n ————–
\ndescription of Developer’s plan to ensure that people under the age of 21 years
\nwill be identified and prohibited from gambling or loitering in the casino.<\/p>\n
(ff) Developer is not a party to any agreement, document or instrument
\nthat has a material adverse effect on the ability of Developer to carry out its
\nobligations under this Agreement.<\/p>\n
(gg) To the best of Developer’s knowledge, it is unaware of any
\ncondition or fact that would render Developer unsuitable to receive a
\nCertificate of Suitability and a Casino License.<\/p>\n
(hh) Neither execution of this Agreement nor discharge by the
\nDeveloper of any of its obligations hereunder shall cause Developer to be in
\nviolation of any applicable law, or regulation, its charter or other
\norganizational documents or any agreement to which it is a party.<\/p>\n
ARTICLE IX<\/p>\n
REPRESENTATIONS, WARRANTIES AND COVENANTS OF CITY AND EDC<\/p>\n
9.1 Representations and Warranties of City. City represents and warrants
\n ————————————–
\nto Developer that each of the following statements is true and accurate as of
\nthe Effective Date:<\/p>\n
57<\/p>\n
(a) City is a validly existing municipal corporation and has all
\nrequisite power and authority to enter into and perform its obligations under
\nthis Agreement, and all other agreements and undertakings to be entered into by
\nCity in connection herewith.<\/p>\n
(b) This Agreement and, to the extent such documents presently exist
\nin a form accepted by City and Developer, each document contemplated or required
\nby this Agreement to which City is a party has been duly authorized by all
\nnecessary action on the part of, has been or will be duly executed and delivered
\nby City; is binding on City; and is enforceable against City in accordance with
\nits terms, subject to applicable principles of equity and insolvency laws.<\/p>\n
(c) Neither execution of this Agreement nor discharge by the City of
\nany of its obligations hereunder shall cause City to be in violation of any
\napplicable law, or regulation, its charter or organizational documents or any
\nagreement to which it is a party.<\/p>\n
9.2 Representations and Warranties of EDC. EDC represents and warrants to
\n ————————————-
\nDeveloper that each of the following statements is true and accurate as of the
\nEffective Date:<\/p>\n
(a) EDC is a validly existing State public body corporate and has all
\nrequisite power and authority to enter into and perform its obligations under
\nthis Agreement, and all other agreements and undertakings to be entered into by
\nEDC in connection herewith.<\/p>\n
(b) This Agreement and, to the extent such documents presently exist
\nin a form accepted by EDC and Developer, each document contemplated or required
\nby this Agreement to which EDC is a party has been duly authorized by all
\nnecessary action on the part of, has been or will be duly executed and delivered
\nby EDC; is binding on EDC; and is enforceable against EDC in accordance with its
\nterms, subject to applicable principles of equity and insolvency laws.<\/p>\n
(c) Neither execution of this Agreement nor discharge by the EDC of
\nany of its obligations hereunder shall cause EDC to be in violation of any
\napplicable law, or regulation, its charter or other organizational documents or
\nany agreement to which it is a party.<\/p>\n
9.3 Final Site Selection. In the event that by the Closing Date the
\n ——————–
\nDeveloper and the Other Land-Based Casino Developers shall not have designated
\nthe specific sites within the Casino Area on which the Land-Based Casino
\nDevelopments are to be located (the “Final Sites”), then Developer and the Other
\nLand-Based Casino Developers shall jointly submit the suggested Final Sites to
\nthe Mayor who, through a blind drawing in the presence of the Developer and the
\nOther Land-Based Casino Developers, shall designate which of the Final Sites
\nshall be conveyed to which of the developers of the Land-Based Casino
\nDevelopments.<\/p>\n
9.4 Delivery of Other Development Agreements. On the Execution Date, City
\n —————————————-
\nshall deliver to Developer a true and accurate copy of each of the development
\nagreements executed by the Other Land-Based Casino Developers.<\/p>\n
58<\/p>\n
ARTICLE X<\/p>\n
EVENTS OF DEFAULT, REMEDIES AND TERMINATION<\/p>\n
10.1 Events of Default. The occurrence of any of the following shall
\n —————–
\nconstitute an “Event of Default” under this Agreement:<\/p>\n
(a) Subject to Force Majeure, if Developer shall fail to substantially
\nperform or comply with any commitment, agreement, covenant, term or condition
\n(other than those specifically described in any other subparagraph of this
\nSection 10.1) of this Agreement, including, but not limited to, those certain
\n————
\ncovenants set forth in Section 2.6 hereof, and in such event if Developer shall
\n ———–
\nfail to remedy any such default within thirty (30) days after Developer’s
\nreceipt of written notice of default with respect thereto from City provided,
\nhowever, that if any such default is reasonably susceptible of being cured
\nwithin one hundred eighty (180) days, but cannot with due diligence be cured by
\nDeveloper within thirty (30) days, and if Developer commences to cure the
\ndefault within thirty (30) days and diligently prosecutes the cure to
\ncompletion, then Developer shall not during such period of diligently curing be
\nin default hereunder as long as such default is completely cured within one
\nhundred eighty (180) days of the first notice of such default to Developer;
\nprovided, however, that if the cure can be accomplished by the payment of money,
\nthe failure to pay is not a diligent commencement of a cure;<\/p>\n
(b) If Developer shall make a general assignment for the benefit of
\ncreditors or shall admit in writing its inability to pay its debts as they
\nbecome due;<\/p>\n
(c) If Developer shall file a voluntary petition under any title of
\nthe United States Bankruptcy Code, as amended from time to time, or if such
\npetition is filed against Developer and an order for relief is entered, or if
\nDeveloper shall file any petition or answer seeking, consenting to or
\nacquiescing in any reorganization, arrangement, composition, readjustment,
\nliquidation, dissolution or similar relief under any present or any future
\nfederal bankruptcy code or any other present or future applicable federal, state
\nor other statute or law, or shall seek or consent to or acquiesce to or suffer
\nthe appointment of any trustee, receiver, custodian, assignee, liquidator or
\nsimilar official of Developer, or of all or any substantial part of its
\nproperties or of the Development or any interest therein of Developer;<\/p>\n
(d) If within ninety (90) days after the commencement of any
\nproceeding against Developer seeking any reorganization, arrangement,
\ncomposition, readjustment, liquidation, dissolution or similar relief under the
\npresent or any future federal bankruptcy code or any other present or future
\napplicable federal, state or other statute or law, such proceeding shall not
\nhave been dismissed; or if within ninety (90) days after the appointment,
\nwithout the consent or acquiescence of Developer of any trustee, receiver,
\ncustodian, assignee, liquidator or other similar official of Developer or of all
\nor any substantial part of its properties or of the Development or any interest
\ntherein of Developer, such appointment shall have not been vacated or stayed on
\nappeal or otherwise, or if within ninety (90) days after the expiration of any
\nsuch stay, such appointment shall not have been vacated;<\/p>\n
59<\/p>\n
(e) If any representation or warranty made by Developer hereunder is
\nintentionally false or misleading in any material respect when made and such
\nfalse or misleading representation or warranty either (i) has a material adverse
\neffect on the Development or (ii) resulted in an unfair competitive advantage
\nmaterially benefitting Developer in the RFP\/Q selection process considering
\nDeveloper’s response to the RFP\/Q in total;<\/p>\n
(f) If any of the Closing Certificates or any certificate delivered
\npursuant to Section 7.16 are intentionally false or misleading in any material
\n ————
\nrespect when made and has a material adverse effect on the Development;<\/p>\n
(g) If a default shall occur, which has not been cured within any
\napplicable cure period, under, or if there is any attempted withdrawal,
\ndisaffirmance, cancellation, repudiation, disclaimer of liability or contest of
\nobligations (other than a contest as to performance of such obligations) under
\nany agreement which guaranties the payment or performance of any of the
\nobligations of Developer to City and\/or EDC hereunder, other than as may be
\npermitted in such agreement;<\/p>\n
(h) Subject to Force Majeure, if in accordance with Article XIII,
\n ————-
\nDeveloper fails to maintain in full force and effect those policies of insurance
\nas set forth on Exhibit 13.1 and in such event Developer fails to remedy such
\n ————
\ndefault within five (5) Business Days after Developer’s receipt of written
\nnotice of default with respect thereto from City;<\/p>\n
(i) If the construction of the Casino Complex at any time is
\ndiscontinued or suspended for a period of forty-five (45) consecutive calendar
\ndays, subject to Force Majeure and is not restarted prior to Developer’s receipt
\nof written notice of default hereunder;<\/p>\n
(j) If the Completion Date does not occur within twelve (12) months
\nfrom the Agreed Upon Completion Date;<\/p>\n
(k) If the Casino License, once obtained, is revoked by a final, non-
\nappealable order or Developer fails to renew its Casino License; or<\/p>\n
(l) If Developer fails to comply with its obligations under Section
\n ——-
\n3.2 within one hundred eighty (180) days after Developer’s receipt of written
\n—
\nnotice of default hereunder.<\/p>\n
10.2 Remedies.
\n ——– <\/p>\n
(a) Subject to the limitations set forth in Section 10.5, upon an
\n ————
\nEvent of Default, City shall have the right if it so elects: (i) to any and all
\nremedies available at law or in equity; (ii) to terminate this Agreement; (iii)
\nto receive liquidated damages as and to the extent set forth in this Agreement
\nand (iv) to institute and prosecute proceedings to enforce in whole or in part
\nthe specific performance of this Agreement by Developer, and\/or to enjoin or
\nrestrain the Developer from commencing or continuing said breach, and\/or to
\ncause by injunction the Developer to correct and cure said breach or threatened
\nbreach (a “Specific Performance<\/p>\n
60<\/p>\n
Proceeding”). Except as and to the extent set forth in Section 10.5, none of the
\n ————
\nremedies enumerated herein is exclusive and nothing herein shall be construed as
\nprohibiting City and\/or EDC from pursuing any other remedies at law, in equity
\nor otherwise available to it under the Agreement.<\/p>\n
(b) Subject to the limitations set forth in Section 10.5, the rights
\n ————
\nand remedies of the City and EDC, whether provided by law or by this Agreement,
\nshall be cumulative, and the exercise by the City and\/or EDC of any one or more
\nof such remedies shall not preclude the exercise by it, at the same or different
\ntimes, of any other such remedies for the same default or breach, to the extent
\npermitted by law. No waiver made by the City and\/or EDC shall apply to
\nobligations beyond those expressly waived in writing.<\/p>\n
(c) If City and\/or EDC fails to perform an act required under this
\nAgreement within the time specified in this Agreement (or if no time is
\nspecified, within a reasonable time), Developer’s sole and exclusive remedies
\nagainst City and\/or EDC shall be to institute and prosecute proceedings to: (i)
\nenforce in whole or in part the specific performance of this Agreement by City
\nand\/or EDC, and\/or to enjoin or restrain City and\/or EDC from commencing or
\ncontinuing said breach, and\/or cause by injunction City and\/or EDC to correct
\nand cure said breach or threatened breach; or (ii) reform this Agreement in such
\nrespects as may be determined to be equitable in light of the failure of City
\nand\/or EDC. Notwithstanding the foregoing, if City acquires the Project Premises
\nand\/or if Developer acquires the Project Premises pursuant to the Conveyance
\nAgreement and this Agreement terminates solely by reason of the failure of the
\ncondition set forth in Section 2.4(a)(8), (x) if Developer has not acquired the
\n —————–
\nProject Premises, City shall (A) pay Developer amounts that Developer advanced
\npursuant to Section 2.5(b), with interest at Developer’s cost of funds from the
\n ————–
\ndate of such advance, to the date of repayment by the City; (B) cause
\nDeveloper’s letter of credit furnished thereunder to be returned; and (C)
\nreimburse Developer for the costs of acquiring such letter of credit and
\nDeveloper’s Pro Rata Share of Infrastructure Improvements and the costs of
\nenvironmental remediation; and (y) if the Developer has acquired the Project
\nPremises pursuant to the Conveyance Agreement, the Conveyance Agreement shall be
\nrescinded and on such rescission, City shall (A) refund to Developer: all
\npayments to City thereunder and all sums advanced pursuant to Section 2.5(b),
\n ————–
\neach with interest at Developer’s cost of funds from the date of such advance or
\npayment to the date of repayment by the City; (B) reimburse Developer for the
\ncosts of any letter of credit provided pursuant to Section 2.5(b); and (C)
\n ————–
\nreimburse Developer for its Pro Rata Share of Infrastructure Improvements and
\nthe costs of environmental remediation, and Developer shall deliver a quit claim
\ndeed of the Project Premises to the City or the EDC as the City shall direct.<\/p>\n
(d) If Developer acquires the Project Premises or any portion thereof
\n(the “Acquired Property”) (x) but fails to obtain its Certificate of Suitability
\nprior to December 31, 1999 or (y) at the election of the City, upon the
\noccurrence of an Event of Default enumerated in Section 10.5(a) prior to
\n —————
\ncommencing construction, Developer agrees, upon written notice from the City (a
\n“Requested Resale Notice”), to reconvey the Acquired Property to or at the
\ndirection of the City (a “Required Resale”) provided EDC rescinds the Conveyance
\nAgreement and pays Developer its documented costs incurred in connection with
\nthe development of the Acquired Property (other than design, architectural and
\nfinancing costs) from and after the date of<\/p>\n
61<\/p>\n
conveyance of the Acquired Property plus Developer’s Pro Rata Share of
\nInfrastructure Improvements and its costs of environmental remediation.<\/p>\n
(e) If an Event of Default shall occur to which a Mandatory Sale is a
\nremedy available to the City (a “Significant Event of Default”), the following
\nprocedures shall be applicable and shall constitute a Mandatory Sale:<\/p>\n
(i) Following the occurrence of a Significant Event of Default
\nwhich has not been cured within the time provided by this Agreement (a “Matured
\nSignificant Event of Default”), the City may, on written notice to Developer
\ndelivered within sixty (60) days following the Significant Event of Default
\nbecoming a Matured Significant Event of Default (the “Mandatory Sale Notice”),
\ninstitute the procedures set forth in this Section 10.2(e), provided however;
\n —————
\n(i) if the City fails to deliver such Mandatory Sale Notice to Developer within
\nsuch sixty (60) day period, the City shall be deemed to have waived the
\nMandatory Sale remedy with respect to that Matured Significant Event of Default,
\nand (ii) notwithstanding the expiration of the applicable cure period, if
\nDeveloper shall have cured the Matured Event of Default prior to the delivery of
\nsuch Mandatory Sale Notice, the remedy of Mandatory Sale shall not be available
\nwith respect to that Matured Significant Event of Default.<\/p>\n
(ii) Following receipt of a timely Mandatory Sale Notice,
\nDeveloper shall commence good faith efforts to dispose of the Casino Complex in
\na manner consistent with this Agreement, including satisfying all the
\nrequirements of Article XIV. In effecting such disposition, Developer shall be
\n ———–
\nentitled to seek to maximize its own economic return, subject to consultation
\nwith the City and taking into account the findings set forth in Section 2.2.
\n ———–
\nSubject to Section 10.2(e)(iii), during the period in which Developer is
\n ——————–
\nendeavoring to effect the disposition of the Casino Complex in a Mandatory Sale
\n(the “Sale Period”), it shall continue to operate the Casino Complex pursuant to
\nand in accordance with this Agreement.<\/p>\n
(iii) Notwithstanding anything to the contrary provided for in
\nSection 10.2(e)(ii) above, the Casino Complex shall be operated during the Sale
\n——————-
\nPeriod by a conservator qualified under the Act on the occurrence and for the
\nduration of any of the following events: (i) Developer’s Casino License is
\nrevoked by a final, non-appealable order or Developer fails to renew its Casino
\nLicense; (ii) at the election of City upon written notice to Developer, if the
\ndisposition of the Casino Complex has not been completed within three (3) years
\nfollowing delivery of a timely Mandatory Sale Notice; (iii) at the election of
\nCity upon written notice to Developer, upon the occurrence of a Matured
\nSignificant Event of Default other than the one giving rise to the Mandatory
\nSale Notice.<\/p>\n
(iv) Prior to completion of the disposition of the Casino
\nComplex pursuant to a Mandatory Sale, Developer and City may mutually agree to
\nterminate the disposition process, in which event the Mandatory Sale Notice
\nshall be deemed to have been withdrawn and to be of no force or effect.<\/p>\n
(v) For purposes of Section 10.5(b)(ii), the term “Shortfall
\n ——————-
\nAmount” shall mean the amount, if any, by which the (x) City’s share of the
\nWagering Tax and (y)<\/p>\n
62<\/p>\n
Municipal Services Fee derived from the operation of the Casino Complex during
\nthe Sale Period is less than the lesser of (1) eighty percent (80%) of the (x)
\nCity’s share of the Wagering Tax and (y) Municipal Services Fee derived from the
\noperation of the Casino Complex for the full twelve (12) calendar months
\nimmediately preceding the delivery of the Mandatory Sale Notice (or if the
\nCasino Complex has been open for fewer than twelve (12) months, for that number
\nof full calendar months that it has been opened) divided by twelve (12) (or such
\nfewer number of full months in which the Casino Complex has been open) and
\nmultiplied by the number of full calendar months of the Sale Period; or (2)
\neighty percent (80%) of fifty percent (50%) of the (x) City’s share of the
\nWagering Tax and (y) Municipal Services Fee derived from the operation of the
\nOther Land-Based Casino Developments during the Sale Period; provided however,
\nin no event shall the Shortfall Amount exceed Fifty Million Dollars
\n($50,000,000). By way of illustration, if: (i) the Sale Period is eighteen (18)
\nmonths; (ii) the (x) City’s share of Wagering Tax and (y) Municipal Services Fee
\nderived from the Casino Complex during the twelve (12) month period preceding
\nthe Sale Period is Twenty-Four Million Dollars ($24,000,000); (iii) the (x)
\nCity’s share of the Wagering Tax and (y) Municipal Services Fee derived from the
\nSale Period is Twenty-Four Million Dollars ($24,000,000); and (iv) eighty
\npercent (80%) of fifty percent (50%) of the aggregate of the (x) City’s share of
\nthe Wagering Tax and (y) Municipal Services Fee derived from the Other Land-
\nBased Casino Developments during the Sale Period is Thirty Million Dollars
\n($30,000,000), then the Shortfall Amount computed under clause (1) would be Four
\nMillion Eight Hundred Thousand Dollars ($4,800,000) ($1.6 million multiplied by
\n18, i.e. $28.8 million; reduced by $24 million), and the Shortfall Amount
\ncomputed under clause (2) would be Six Million Dollars ($6,000,000) ($30 million
\nreduced by $24 million). Since the computation under clause (1) produces a lower
\nnumber than the computation under clause (2), the Shortfall Amount computed
\nunder clause (1) would apply.<\/p>\n
(f) If the City elects to receive liquidated damages upon the
\noccurrence of an Event of Default enumerated in Section 10.5(a), Developer shall
\n —————
\npay to City as the sole remedy of the City and EDC and as liquidated damages
\n(and not as a penalty), an amount per calendar day for each calendar day during
\nthe “Damage Period,” as hereinafter defined, equal to the lesser of (i)
\n$118,290, or (ii) (A) during periods in which two (2) other land-based casinos
\nare open to the public within the City, twenty-five percent (25%) of the City’s
\nshare of the aggregate Wagering Tax and Municipal Services fee derived from both
\nsuch operations during the Late Period and (B) during periods in which one (1)
\nother land-based casino is open to the public within the City, forty percent
\n(40%) of the City’s share of the Wagering Tax and Municipal Services fee derived
\nfrom such operation during the Late Period, divided by the number of days in the
\nDamage Period. Developer shall under no circumstances have aggregate liability
\nhereunder and pursuant to Section 6.7 in excess of Fifty Million Dollars
\n ———–
\n($50,000,000). For purposes of this Section 10.2(f), the Damage Period shall
\n —————
\ncommence on the date forty-eight (48) months from the date the City delivers
\nwritten notice to Developer of its election to receive liquidated damages
\npursuant to Section 10.5(a) and shall continue until the date a casino having no
\n —————
\nless than one hundred thousand (100,000) square feet of gaming space opens for
\nbusiness on the Project Premises. The foregoing limitation on City’s and EDC’s
\nremedies shall in no way limit or diminish City’s or EDC’s rights or remedies
\nunder the Guaranty and Keep Well Agreement.<\/p>\n
63<\/p>\n
(g) EDC agrees that (1) it has no right to, and shall not attempt to
\nelect to exercise or exercise any remedy on behalf of the City under this
\nAgreement, Guaranty and Keep Well Agreement and Performance Guaranty and (2) it
\nshall not elect to exercise or exercise any remedy under this Agreement,
\nGuaranty and Keep Well Agreement and Performance Guaranty without the consent of
\nthe Mayor.<\/p>\n
10.3 Termination. Except for the provisions that by their terms survive,
\n ———–
\nthis Agreement shall terminate as provided in this Agreement.<\/p>\n
10.4 Liquidated Damages. City and Developer covenant and agree that
\n ——————
\nbecause of the difficulty and\/or impossibility of determining City’s damages
\nupon certain Events of Default and breaches of this Agreement as set forth in
\nSections 6.7, 10.2(e) and 10.2(f), by way of detriment to the public benefit and
\n———————————
\nwelfare of the City through lost employment opportunities, lost tourism,
\ndegradation of the economic health of the City and loss of revenue, both
\ndirectly and indirectly, Developer shall pay to City, as liquidated damages and
\nnot as a penalty, the sum or sums set forth in Sections 6.7, 10.2(e)(v) or
\n —————————
\n10.2(f) that pertain to the specified Event of Default.
\n——- <\/p>\n
10.5 Limitation on Remedies. City’s and EDC’s remedies under Sections
\n ———————- ——–
\n10.2(a) and (b) for and only for the Events of Default enumerated below in this
\n—————
\nSection 10.5, shall be limited as follows:
\n———— <\/p>\n
(a) Upon an Event of Default arising under Section 10.1(a) due to the
\n —————
\nbreach by Developer of any of the following obligations specified in this
\nSection 10.5(a), City may elect either to (i) institute a Specific Performance
\n—————
\nProceeding; and\/or (ii) (x) receive liquidated damages from Developer calculated
\nas set forth in Section 10.2(f); and\/or (y) terminate this Agreement and request
\n —————
\na Required Resale: breach by Developer of its obligations under Section 2.5
\n ———–
\n(Conveyance of Project Premises to Developer); Section 2.7 (Obtaining
\n ———–
\nCertificate of Suitability and Casino License); Section 2.10 (Initial
\n ————
\nFinancing); or Section 2.14 (Other Commitments of Developer).
\n ————<\/p>\n
(b) Upon an Event of Default arising under Section 10.1(a) due to a
\n —————
\nbreach by Developer of any of the following obligations specified in this
\nSection 10.5(b), City may elect either to (i) institute a Specific Performance
\n—————
\nProceeding; and\/or either (ii) require a Mandatory Sale and receive the
\nShortfall Amount as liquidated damages from Developer; or (iii) receive actual
\ndamages from Developer: Section 3.3 (Subsequent Financings); Section 3.5
\n ———– ———–
\n(Sinking Fund); Section 7.7 (Capital Maintenance Fund); Section 7.15 (Veracity
\n ———– ————
\nof Statements); Section 7.17 (Use of Project Premises); failure of Developer to
\n ————
\ncomplete the Restoration as required under Article XVI (Damage to or Destruction
\n ———–
\nof Improvements; Condemnation); or upon an Event of Default arising under
\nSections 10.1(b), (c), (d), (e), (f), (g), (i), (j), (k) or (l).
\n—————————————————————<\/p>\n
(c) Upon an Event of Default arising under Section 7.3 (Radius
\n ———–
\nRestriction) by Developer and\/or Parent Company, City may elect either to (i)
\ninstitute a Specific Performance Proceeding and\/or (ii) terminate this
\nAgreement.<\/p>\n
64<\/p>\n
(d) Upon an Event of Default arising under Section 10.1(a) due to the
\n —————
\nbreach by Developer of any of its obligations under Section 7.1 (Casino Complex
\n ———–
\nOperations) or Section 7.8 (Maintenance and Repairs), City may elect either to
\n ———–
\n(i) institute a Specific Performance Proceeding and\/or (ii) receive actual
\ndamages from Developer, provided however, that if in a Specific Performance
\nProceeding, the arbitrator or arbitrators determine that Developer is not
\nmaintaining or operating the Casino Complex in a manner consistent with First
\nClass Casino Complex Standards, but are unable or unwilling to fashion a
\nspecific performance remedy, in lieu thereof the arbitrator or arbitrators may
\nrequire Developer to increase its spending for capital improvements or
\nmaintenance by Five Hundred Thousand Dollars ($500,000) over the ensuing twelve
\n(12) month period (the “Initial Period”). If during the twelve (12) month period
\nimmediately following the Initial Period (the “Subsequent Period”), the City, by
\nreason of an additional Event of Default under Section 10.1(a) due to a breach
\n —————
\nby Developer of any of its obligations under Section 7.1 or Section 7.8,
\n ———– ———–
\ninitiates a Specific Performance Proceeding, and the arbitrator or arbitrators
\ndetermine that Developer is not maintaining or operating the Casino Complex in a
\nmanner consistent with First Class Casino Complex Standards, but are unable or
\nunwilling to fashion a specific performance remedy, in lieu thereof the
\narbitrator or arbitrators may require the Developer to increase its spending for
\ncapital improvements or maintenance by One Million Dollars ($1,000,000) over the
\nensuing twelve (12) month period.<\/p>\n
(e) Upon an Event of Default arising under this Agreement not
\notherwise specified in this Section 10.5, City may elect either to (i) institute
\n ————
\na Specific Performance Proceeding and\/or (ii) receive actual damages from
\nDeveloper.<\/p>\n
The foregoing limitations on City’s and EDC’s remedies under Sections
\n ——–
\n10.2(a) and (b) shall in no way limit or diminish any other right of City or EDC
\n—————
\nunder this Agreement or otherwise, including without limitation City’s or EDC’s
\nrights or remedies (x) under the Guaranty and Keep Well Agreement, Performance
\nGuaranty, or under any other guaranty, indemnity, instrument or agreement or (y)
\nunder Sections 2.11, 6.7, 10.2(d), (e) and (f), Article XI, Article XV or
\n ————- — ——————– ———- ———-
\nArticle XVI.
\n———– <\/p>\n
ARTICLE XI<\/p>\n
CITY’S RIGHT TO PERFORM DEVELOPER’S COVENANTS<\/p>\n
If Developer at any time shall fail to take out, pay any insurance premiums
\nfor, maintain or deliver any of the insurance policies in the manner provided
\nfor herein, or shall fail to pay any sums, costs, expenses, charges, payments or
\ndeposits to be paid by Developer hereunder after notice and the expiration of
\nany applicable cure period, City, without waiving or releasing Developer from
\nany obligation of Developer contained in this Agreement or waiving or releasing
\nany rights of City hereunder, at law or in equity, may (but shall be under no
\nobligation to) pay any such sums, costs, expenses, charges, payments or deposits
\npayable by Developer hereunder. All sums paid by City and all costs and
\nexpenses incurred by City in connection with the performance of any such
\nobligation, together with interest thereon at the Default Rate from the
\nrespective dates of City’s making of each such payment or incurring of each such
\nsum, cost,<\/p>\n
65<\/p>\n
liability, expense, charge, payment or deposit until the date of actual
\nrepayment to City, shall be paid by Developer to City on demand. Any payment or
\nperformance by City pursuant to the foregoing provisions of this Section shall
\nnot be nor be deemed to be a waiver or release of breach or default of Developer
\nwith respect thereto or of the right of City to take such other action as may be
\npermissible hereunder, at law or in equity if an Event of Default by Developer
\nshall have occurred. The City’s rights under this Article XI shall survive
\n ———-
\ntermination of this Agreement.<\/p>\n
ARTICLE XII<\/p>\n
FORCE MAJEURE<\/p>\n
12.1 Force Majeure. An event of “Force Majeure” shall mean the following
\n ————-
\nevents or circumstances, to the extent that they delay or otherwise adversely
\naffect the performance beyond the reasonable control of Developer, or its agents
\nand contractors, of their duties and obligations under this Agreement, or the
\nperformance by City, EDC or the PM of their respective duties and obligations
\nunder this Agreement:<\/p>\n
(a) Strikes, lockouts, labor disputes, inability to procure materials,
\nfailure of utilities, labor shortages or explosions on the Project Premises;<\/p>\n
(b) Changes in Governmental Requirements applicable to the
\nconstruction of a Component, first effective after the submission and approval
\nof the Schematic Design Documents, and the orders of any Governmental Authority
\nhaving jurisdiction over a party, the Development or the Developer (however, not
\nincluding stop work orders due to a building or other code violation);<\/p>\n
(c) Changes in Governmental Requirements by any Governmental
\nAuthority, first effective after the Execution Date;<\/p>\n
(d) Acts of God, tornadoes, hurricanes, floods, sinkholes, fires and
\nother casualties, landslides, earthquakes, epidemics, quarantine, pestilence,
\nand\/or abnormal inclement weather;<\/p>\n
(e) Acts of a public enemy, acts of war, terrorism, effects of nuclear
\nradiation, blockades, insurrections, riots, civil disturbances, or national or
\ninternational calamities;<\/p>\n
(f) Concealed and unknown conditions of an unusual nature that are
\nencountered below ground or in an existing structure;<\/p>\n
(g) Any temporary restraining order, preliminary injunction or
\npermanent inunction, unless based in whole or in part on the actions or failure
\nto act of Developer; and<\/p>\n
66<\/p>\n
(h) Unreasonable delay by the State in licensing Persons under the Act
\nto the extent that any such delays are not based in whole or in part on the
\nactions or failure to act of such Persons.<\/p>\n
12.2 Extension of Time; Excuse of Performance. Developer shall be entitled
\n —————————————-
\nto an adjustment in the time for or excuse of the performance of any duty or
\nobligation of Developer under this Agreement for Force Majeure events described
\nin Section 12.1, but only for the number of days due to and\/or resulting as a
\n ————
\nconsequence of such causes and only to the extent that such occurrences actually
\nprevent or delay the performance of such duty or obligation or cause such
\nperformance to be commercially unreasonable.<\/p>\n
ARTICLE XII<\/p>\n
INSURANCE<\/p>\n
13.1 Insurance. Developer shall maintain in full force and effect the
\n ———
\ntypes and commercially reasonable amounts of insurance as set forth on Exhibit
\n ——-
\n13.1 to the extent available at commercially reasonable rates. Self insurance
\n—-
\nshall be permitted in accordance with First Class Casino Complex Standards.<\/p>\n
13.2 Form of Insurance and Insurers. Whenever, under the terms of this
\n ——————————
\nAgreement, Developer is required to maintain insurance, City and EDC shall be
\nadditional named insureds in all such insurance policies to the extent of their
\ninsurable interest, if any. All policies of insurance provided for in this
\nAgreement shall be effected under valid and enforceable policies, in
\ncommercially reasonable form issued by responsible insurers which are authorized
\nto transact business in the State, having a Best rating of not less than A+ or
\nits equivalent from another recognized rating agency. As soon as practicable
\nfollowing the Closing Date, Developer shall deliver to City and EDC a copy of
\neach policy, together with proof reasonably satisfactory to City and EDC that
\nthe full premiums have been paid or provided for at least the first year of the
\nterm of such policies. Thereafter, as promptly as practicable prior to the
\nexpiration of each such policy, Developer shall deliver to City and EDC an
\nAccord certificate, together with proof reasonably satisfactory to City and EDC
\nthat the full premiums have been paid or provided for at least the renewal term
\nof such policies and as promptly as practicable, a copy of each renewal policy.<\/p>\n
13.3 Other Policies. Developer shall not take out separate insurance
\n ————–
\nconcurrent in form or contributing in the event of loss with that required in
\nthis Agreement unless City and EDC are additional named insureds therein to the
\nextent of their insurable interest, if any, with loss payable as provided in
\nSection 13.2. Developer shall as promptly as practicable notify City and EDC of
\n————
\nthe taking out of any such separate insurance and shall cause copies of the
\noriginal policies in respect thereof to be delivered as required in Section
\n ——-
\n13.2.
\n—-<\/p>\n
13.4 Insurance Notice. Each such policy of insurance to be provided
\n —————-
\nhereunder shall contain, to the extent obtainable on a commercially reasonable
\nbasis, (a) a provision that no act <\/p>\n
67<\/p>\n
or omission of Developer which would otherwise result in forfeiture or reduction
\nof the insurance therein provided shall affect or limit the obligation of the
\ninsurance company to pay City or EDC the amount of any loss sustained to the
\nextent of its insurable interest, if any, and (b) an agreement by the insurer
\nthat such policy shall not be canceled or modified without at least thirty (30)
\ndays prior written notice by registered mail, return receipt requested, to City
\nand EDC.<\/p>\n
13.5 Keep in Good Standing. Developer shall observe and comply with the
\n ———————
\nrequirements of all policies of public liability, fire and other policies of
\ninsurance at any time in force with respect to the Development and Developer
\nshall so perform and satisfy the requirements of the companies writing such
\npolicies.<\/p>\n
13.6 Blanket Policies. Any insurance provided for in this Article may be
\n —————-
\nprovided by blanket and\/or umbrella policies issued to Developer covering the
\nDevelopment and other properties owned or leased by Developer; provided,
\nhowever, that the amount of the total insurance allocated to the Development
\nshall be such as to furnish in protection the equivalent of separate policies in
\nthe amounts herein required without possibility of reduction or coinsurance by
\nreason of, or damage to, any other premises covered therein, and provided
\nfurther that in all other respects, any such policy or policies shall comply
\nwith the other specific insurance provisions set forth herein and Developer
\nshall make such policy or policies or a copy thereof available for review by
\nCity and EDC at the Development.<\/p>\n
ARTICLE XIV<\/p>\n
TRANSFER AND ASSIGNMENT<\/p>\n
14.1 Transfer of Ownership.
\n ——————— <\/p>\n
(a) For purposes of this Section 14.1, “Restricted Owner” means (i)
\n ————
\nDeveloper and (ii) any Person who directly or indirectly owns or holds any
\ninterest in Developer or any Casino Component Manager\/Operator of a Covered
\nComponent other than any Person who would be a Restricted Owner due solely to
\nthat Person’s ownership of (x) a direct or indirect interest in a Publicly
\nTraded Corporation or (y) a five percent (5%) or less direct or indirect
\ninterest in (1) Developer unless, in the case of clause (y), upon completion of
\nany Transfer the transferee will in the aggregate own or hold a five percent
\n(5%) or more direct or indirect ownership interest in Developer, or (2) the
\nCasino Component Manager\/Operator of a Covered Component. The covenants that
\nDeveloper is to perform under this Agreement for City’s and EDC’s benefit and
\nthe services that each Casino Component Manager\/Operator of a Covered Component
\nrenders with respect to the Casino Complex are personal in nature. City and EDC
\nare relying upon Developer and the Casino Component Manager\/Operators in the
\nexercise of their skill, judgment, reputation and discretion with respect to the
\nCasino Complex. From and after the Execution Date, any Transfer by a Restricted
\nOwner of (x) any direct ownership interest in Developer or any Casino Component
\nManager\/Operator of a Covered Component, whether held by virtue of partnership,
\nlimited liability company, corporation or other form of entity; or (y) any
\nownership interest in any Restricted Owner, whether held by virtue of
\npartnership, limited liability company, <\/p>\n
68<\/p>\n
corporation or through other form of entity shall require the prior written
\nconsent of City, provided that with respect to a Transfer by any Restricted
\nOwner other than a Transfer by Developer, any Affiliate of Developer or any
\nAffiliate of any Casino Component Manager\/Operator of a Covered Component, City
\nshall not withhold its consent to any Transfer unless the transferee (i) is in
\ndefault on any debts due City, EDC or any other entity (a “Municipal Supported
\nEntity”) that receives or received any City funding or subsidy to carry out its
\nactivities; (ii) has defaulted on any other material obligations to City, EDC or
\nany Municipal Supported Entity whether or not such default has been cured; or
\n(iii) has engaged in any frivolous litigation or made any frivolous claims
\nagainst City as determined by a court, or has been found liable to the City for
\nabuse of process or malicious prosecution with respect to claims against the
\nCity.<\/p>\n
(b) Nothing contained in this Section 14.1 shall prevent a Transfer of
\n ————
\n(x) an ownership interest in a Restricted Owner by: (i) Parent Company or an
\nAffiliate of Parent Company to an entity which has succeeded to all or a
\nsubstantial portion of the assets of Parent Company or such Affiliate; or (ii)
\nany Person (1) to that Person’s spouse, child or parent (“Family Members”); (2)
\nto an entity whose beneficial owners consist solely of such transferor and\/or
\nthe Family Members of the transferor; (3) to the beneficial owners of the
\ntransferor if the transferor is an entity; (4) to any Person who owns any direct
\nor indirect interest in any Restricted Owner; (5) to any Person to whom the City
\npreviously has consented to a Transfer; (6) by operation of law; and (7) to an
\ninstitutional lender on account of a pledge to such lender or (y) an ownership
\ninterest in Developer or Restricted Owner or in any Affiliate of Developer or
\nRestricted Owner in connection with a public offering registered pursuant to the
\nSecurities Act.<\/p>\n
(c) All transferees shall hold their interests subject to the
\nrestrictions of this Article XIV.
\n ———– <\/p>\n
(d) Developer shall promptly notify City as promptly as practicable
\nupon Developer becoming aware of any Transfer.<\/p>\n
(e) Developer agrees to (x) include in all Casino Component Management
\nAgreements of a Covered Component a transfer restriction provision substantially
\nsimilar to the transfer restriction set forth in this Section 14.1 and to cause
\n ————
\nthe Casino Component Manager\/Operator of a Covered Component to acknowledge that
\nCity is a third-party beneficiary of such provision; and (y) cause each
\nRestricted Owner, other than a Publicly Traded Corporation, to (1) place a
\nlegend on its ownership certificate, if any, or include in its organizational
\ndocuments, a transfer restriction provision substantially similar to the
\ntransfer restriction set forth in this Section 14.1 and (2) either enforce such
\n ————
\nprovision or acknowledge that City is a third-party beneficiary of such
\nprovision.<\/p>\n
14.2 Transfer of Agreement; Development. Developer shall not, whether by
\n ———————————-
\noperation of law or otherwise, Transfer this Agreement, or, subject to Section
\n ——-
\n3.3, the Development, without the prior written consent of the Mayor and City
\n—
\nCouncil; provided that the Mayor and City Council’s right to consent to the
\nTransfer of the Development shall be of no further force or effect at such time
\nas the business operated on the Project Premises no longer includes casino
\ngaming activities.<\/p>\n
69<\/p>\n
ARTICLE XV<\/p>\n
ENVIRONMENTAL<\/p>\n
15.1 Environmental Covenants. Developer covenants that (a) Developer shall
\n ———————–
\nat its own cost comply, and cause its agents, employees, contractors, Space
\nTenants or any other Person under the control and direction of Developer to
\ncomply, with all Environmental Laws with respect to the Development; (b)
\nDeveloper shall Respond to any Release occurring on, under or adjacent to the
\nDevelopment to the extent required by applicable controlling Environmental Laws;
\n(c) Developer shall not Manage any Hazardous Materials on the Development, nor
\nconduct nor authorize the same, except in compliance with all Environmental
\nLaws; (d) Developer shall not take any action that would subject the Development
\nto permit requirements under RCRA for storage, treatment or disposal of
\nHazardous Materials; and (e) Developer shall obtain or cause to be obtained, at
\nno expense to City and\/or EDC, any and all permits necessary or required under
\nEnvironmental Laws in connection with or arising out of Developer’s demolition
\nand construction of Improvements at the Development.<\/p>\n
15.2 Environmental Response. If Developer’s Management of Hazardous
\n ———————-
\nMaterials at the Development gives rise to liability or to an Environmental
\nClaim under any Environmental Law, Developer shall promptly take all applicable
\naction in Response to the extent required by law. City shall have the right,
\nbut not the obligation, after providing Developer with notice and a reasonable
\nopportunity to cure, to enter onto the Development to perform any and all
\nlegally required Response action(s) to cause the Development to comply with
\nEnvironmental Laws and to seek reimbursement for the cost of such Response from
\nDeveloper, together with interest at the Default Rate from the date same was
\npaid.<\/p>\n
15.3 Environmental Indemnity. Developer shall indemnify, defend and hold
\n ———————–
\nharmless City and the EDC from all Environmental Claims suffered or incurred by
\nany of the foregoing arising from or attributable to (a) any breach by Developer
\nof any of its warranties, representations or covenants in this Section; (b)
\nnoncompliance of the Development or Developer with any Environmental Laws; (c)
\nthe condition of the Development; (d) any actual or alleged illness, disability,
\ninjury, or death of any person in any manner arising out of or allegedly arisen
\nout of exposure to Hazardous Materials or other substances or conditions present
\nat the Development, regardless of when any such illness, disability, injury, or
\ndeath shall have occurred or been incurred or manifested itself; and (e)
\nHazardous Materials Managed or Released by Developer or otherwise located or
\nReleased upon the Development. In the event any Environmental Claims or other
\nassertion of liability shall be made against City and\/or EDC for which City
\nand\/or EDC is entitled to indemnity hereunder, City and\/or EDC shall notify
\nDeveloper of such Environmental Claim or assertion of liability and thereupon
\nDeveloper shall, at its sole cost and expense, assume the defense of such
\nEnvironmental Claim or assertion of liability and continue such defense at all
\ntimes thereafter until completion. Notwithstanding anything to the contrary
\ncontained in this Section 15.3, Developer shall not indemnify and shall have no
\n ————
\nresponsibility to City and\/or EDC for any liability with respect to any part of
\nthe Project Premises that was owned by City and\/or EDC, as applicable, <\/p>\n
70<\/p>\n
prior to the Effective Date and which liability arose as a result of the gross
\nnegligence or willful misconduct of City and\/or EDC, as applicable, during the
\nperiod of the City’s and\/or EDC’s ownership. Developer’s obligations hereunder
\nshall survive the termination or expiration of this Agreement.<\/p>\n
ARTICLE XVI<\/p>\n
DAMAGE TO OR DESTRUCTION OF IMPROVEMENTS; CONDEMNATION<\/p>\n
16.1 Damage or Destruction. In the event of damage to or destruction of
\n ———————
\nImprovements on the Project Premises or any part thereof by fire, casualty or
\notherwise, Developer, at its sole expense and whether or not the insurance
\nproceeds, if any, shall be sufficient therefor, shall promptly repair, restore,
\nreplace and rebuild (collectively, “Restore”) the Improvements, as nearly as
\npossible to the same condition that existed prior to such damage or destruction
\n(subject to Developer’s right to make Alterations in accordance with the terms
\nof this Agreement), using materials of an equal or superior quality to those
\nexisting in the Improvements prior to such casualty. All work required to be
\nperformed in connection with such restoration and repair is hereinafter called
\nthe “Restoration.” Developer shall obtain a permanent certificate of occupancy
\nas soon as practicable after the completion of such Restoration. If neither
\nDeveloper nor any Mortgagee shall commence the Restoration of the Improvements
\nor the portion thereof damaged or destroyed promptly following such damage or
\ndestruction and adjustment of its insurance proceeds, or, having so commenced
\nsuch Restoration, shall fail to proceed to complete the same with reasonable
\ndiligence in accordance with the terms of this Agreement, City may, but shall
\nhave no obligation to, complete such Restoration at Developer’s expense. Upon
\nCity’s election to so complete the Restoration, Developer immediately shall
\npermit City to utilize all insurance proceeds which shall have been received by
\nDeveloper, minus those amounts, if any, which Developer shall have applied to
\nthe Restoration, and if such sums are insufficient to complete the Restoration,
\nDeveloper, on demand, shall pay the deficiency to City. Each Restoration shall
\nbe done subject to the provisions of this Agreement.<\/p>\n
16.2 Use of Insurance Proceeds.
\n ————————- <\/p>\n
(a) Subject to the conditions set forth below, all proceeds of
\ncasualty insurance on the Improvements shall be made available to pay for the
\ncost of Restoration if any part of the Improvements are damaged or destroyed in
\nwhole or in part by fire or other casualty. Subject to Section 3.7, all such
\n ———–
\ninsurance proceeds, less the cost of collection, shall be paid into a trust
\naccount to be created by an independent third party (“Insurance Trustee”) to be
\nchosen by (i) the First Mortgagee if the Project Premises is encumbered by a
\nFirst Mortgage or (ii) Developer and City in the event there is no First
\nMortgagee, within ten (10) days of when the proceeds are to be made available.
\nNothing herein shall prohibit the First Mortgagee from acting as the Insurance
\nTrustee. If Developer or City for whatever reason, cannot or will not
\nparticipate in the selection of the Insurance Trustee, then the other party
\nshall select the Insurance Trustee. Developer shall name the Insurance Trustee
\nappointed pursuant to this Section 16.2 as the sole loss payee on Developer’s
\n ————
\ncasualty insurance. If those parties who participate in the selection process
\ncannot agree on the <\/p>\n
71<\/p>\n
selection of the Insurance Trustee, either City or Developer may apply to the
\nCircuit Court for the County for the appointment of a local bank having a
\ncapital surplus in excess of Two Hundred Million Dollars ($200,000,000) as the
\nInsurance Trustee. The Insurance Trustee shall hold the insurance proceeds in
\ntrust to be disbursed in stages to pay for the cost of the Restoration, as
\nhereafter provided. The Insurance Trustee shall deposit the insurance proceeds
\nin an interest bearing account and any after tax interest earned thereon shall
\nbe added to the insurance proceeds. All fees and expenses of the Insurance
\nTrustee shall be paid by Developer.<\/p>\n
(b) Promptly following any damage or destruction to the Improvements
\nby fire, casualty or otherwise, Developer shall:<\/p>\n
(1) give written notice of such damage or destruction to City and
\n each Mortgagee; and<\/p>\n
(2) deliver an agreement by Developer to complete the Restoration
\n in a reasonable amount of time plus periods of time as performance by
\n Developer is prevented by Force Majeure events (other than financial
\n inability) after occurrence of the fire or casualty.<\/p>\n
(c) After satisfaction of the conditions specified in paragraph (b)
\nof this Section, insurance proceeds shall be paid to Developer, or City, as the
\ncase may be, from time to time thereafter in installments, but not more
\nfrequently than once a month, upon application to be submitted from time to time
\nby Developer to Insurance Trustee showing the cost of work, labor, services,
\nmaterials, fixtures and equipment incorporated in the Restoration, or
\nincorporated therein since the last previous application, and paid for by
\nDeveloper or then due and owing. The amount of any installment to be paid to
\nDeveloper shall be such proportion of the total insurance proceeds as the cost
\nof work, labor, services, materials, fixtures and equipment theretofore
\nincorporated by Developer into the Restoration bears to the total estimated cost
\nof the Restoration by Developer, less all payments heretofore made to Developer
\nout of the insurance proceeds. Upon completion of and payment for the
\nRestoration by Developer, the balance of the insurance proceeds shall be paid
\nover to Developer, subject to the rights of any Mortgagee named as an insured.
\nIf the estimated cost of any Restoration exceeds the insurance proceeds received
\nby Insurance Trustee, then prior to the commencement of such Restoration or
\nthereafter if at any time that the cost to complete the Restoration exceeds the
\nunapplied portion of such insurance proceeds, Developer shall from time to time
\nimmediately deposit with Insurance Trustee cash funds in the amount of such
\nexcess, to be held and applied by Insurance Trustee in accordance with the
\nprovisions hereof. If City elects to make the Restoration at Developer’s
\nexpense, as provided in Section 16.1, then, as provided above with respect to
\n ————
\nDeveloper, Insurance Trustee shall pay over the insurance proceeds to City, from
\ntime to time, upon City’s application accompanied by a certificate containing
\nthe statements required under clauses (i), (ii) and (iii) of Section 16.2(d)(1),
\n ——————
\nto the extent not previously paid to Developer pursuant to this Section 16.2(c),
\n —————
\nand Developer shall pay to Insurance Trustee, on demand, any sums which City
\ncertifies to be an estimate of the amount necessary to complete the Restoration,
\nless the undisbursed insurance proceeds.<\/p>\n
72<\/p>\n
(d) The following shall be conditions precedent to each payment made
\nto Developer as provided in Section 16.2:
\n ———— <\/p>\n
(1) There shall be submitted to Insurance Trustee the certificate
\n of the Architect stating (i) that the sum then requested to be withdrawn
\n either has been paid by Developer or is justly due to contractors,
\n subcontractors, materialmen, engineers, architects or other Persons (whose
\n names and addresses shall be stated) who have rendered or furnished work,
\n labor, services, materials, fixtures or equipment for the work and giving a
\n brief description of such work, labor, services, materials, fixtures or
\n equipment and the principal subdivisions or categories thereof and the
\n several amounts so paid or due to each of said Persons in respect thereof,
\n and stating in reasonable detail the progress of the Restoration up to the
\n date of said certificate; (ii) that no part of such expenditures has been
\n or is being made the basis, in any previous or then pending request, for
\n the withdrawal of insurance money or has been made out of the proceeds of
\n insurance received by Developer; and (iii) that the balance of the
\n insurance proceeds held by Insurance Trustee will be sufficient, upon
\n completion of the Restoration, to pay for the same in full, and stating in
\n reasonable detail an estimate of the cost of such completion.<\/p>\n
(2) There shall be furnished to Insurance Trustee appropriate
\n sworn statements and lien waivers (which comply with the mechanics’ lien
\n laws of the State) from all Persons receiving payment under such draw.<\/p>\n
(3) There shall be furnished to Insurance Trustee a title search,
\n or a similar certificate of a title insurance company reasonably
\n satisfactory to Insurance Trustee, showing that there are no liens
\n affecting the Development or any part thereof in connection with work done,
\n authorized or incurred at or relating to the Development which had not been
\n discharged of record, except such as will be discharged upon payment of the
\n amount then requested to be withdrawn.<\/p>\n
(e) Notwithstanding anything in this Section 16.2 to the contrary,
\n ————
\ninsurance proceeds for any fire or casualty of less than Forty Million Dollars
\n($40,000,000) shall not be paid to the Insurance Trustee to be disbursed as
\nprovided in Section 16.2, but instead such proceeds shall be paid by the insurer
\n ————
\ndirectly into a segregated account established by Developer for the purpose of
\nfunding the Restoration. This account is established as an assurance fund to
\nguarantee the completion of the Restoration. Developer retains the right to
\nwithdraw funds from this account to pay for the Restoration and to any excess
\nfunds in the account following completion of the Restoration. Upon receipt of
\nsuch proceeds in the account, Developer shall promptly undertake and complete
\nthe Restoration in accordance with this Article.<\/p>\n
16.3 No Termination. No destruction of or damage to the Improvements, or
\n ————–
\nany portion thereof or property therein by fire, flood or other casualty,
\nwhether such damage or destruction be partial or total, shall permit Developer
\nto terminate this Agreement or relieve Developer from its obligations hereunder.<\/p>\n
73<\/p>\n
16.4 Condemnation. If a Major Condemnation occurs, this Agreement shall
\n ————
\nterminate, and no party to this Agreement shall have any claims, rights,
\nobligations, or liabilities towards any other party arising after termination,
\nother than as provided for herein. If a Minor Condemnation occurs or the use or
\noccupancy of the Development or any part thereof is temporarily requisitioned by
\na civil or military governmental authority, then (a) this Agreement shall
\ncontinue in full force and effect; (b) Developer shall promptly perform all
\nRestoration required in order to repair any physical damage to the Development
\ncaused by the Condemnation, and to restore the Development, to the extent
\nreasonably practicable, to its condition immediately before the Condemnation.
\nIf a Minor Condemnation occurs, subject to Section 3.7, any Proceeds in excess
\n ———–
\nof Forty Million Dollars ($40,000,000) will be and are hereby, to the extent
\npermitted by applicable law and agreed to by the condemnor, assigned to and
\nshall be withdrawn and paid into an escrow account to be created by an escrow
\nagent (“the Escrow Agent”) selected by (i) the First Mortgagee if the
\nDevelopment is encumbered by a First Mortgage; or (ii) Developer and City in the
\nevent there is no First Mortgagee, within ten (10) days of when the Proceeds are
\nto be made available. If Developer or City for whatever reason cannot or will
\nnot participate in the selection of the Escrow Agent, then the other party shall
\nselect the Escrow Agent. Nothing herein shall prohibit the First Mortgagee from
\nacting as the Escrow Agent. This transfer of the Proceeds, to the extent
\npermitted by applicable law and agreed to by the condemnor, shall be self-
\noperative and shall occur automatically upon the availability of the Proceeds
\nfrom the Condemnation and such Proceeds shall be payable into the escrow account
\non the naming of the Escrow Agent to be applied as provided in this Section
\n ——-
\n16.4. If City or Developer are unable to agree on the selection of an Escrow
\n—-
\nAgent, either City or Developer may apply to the Circuit Court for the County
\nfor the appointment of a local bank having a capital surplus in excess of Two
\nHundred Million Dollars ($200,000,000) as the Escrow Agent. The Escrow Agent
\nshall deposit the Proceeds in an interest-bearing escrow account and any after
\ntax interest earned thereon shall be added to the Proceeds. The Escrow Agent
\nshall disburse funds from the Escrow Account to pay the cost of the Restoration
\nin accordance with the procedure described in Section 16.2(b), (c) and (d). If
\n ————— — —
\nthe cost of the Restoration exceeds the total amount of the Proceeds, Developer
\nshall be responsible for paying the excess cost. If the Proceeds exceed the
\ncost of the Restoration, the Escrow Agent shall distribute the excess Proceeds,
\nsubject to the rights of the Mortgagees. Nothing contained in this Section 16.4
\n ————
\nshall impair or abrogate any rights of Developer against the condemning
\nauthority in connection with any Condemnation. All fees and expenses of the
\nEscrow Agent shall be paid by Developer.<\/p>\n
ARTICLE XVI<\/p>\n
FINANCIAL AND ACCOUNTING RECORDS; AUDIT RIGHTS<\/p>\n
17.1 Financial and Accounting Records. Developer shall maintain and keep,
\n ——————————–
\nor shall cause to be maintained and kept, full and accurate Books and Records at
\nthe Casino Complex or at such other location as shall be approved by the Board
\nof all business conducted or transacted in, upon or from the Development,
\nincluding but not limited to all business operations conducted by the Casino
\nComponent Manager\/Operators. Subject to Sections 3.7 and 17.3, during such
\n ———— —-
\nperiods as Developer fails to meet or exceed the Performance Threshold,
\nDeveloper shall make <\/p>\n
74<\/p>\n
available and require each Casino Component Manager\/Operator to make available
\nto City’s third party consultants (“City’s Consultants”) for their review, full
\nand accurate Books and Records reflecting the results of the Casino Complex and,
\nif applicable, any Casino Component Manager\/Operator’s operation of the
\napplicable Component. If Developer maintains permanent records in a computerized
\nor microfiche fashion, Developer shall make available to City’s Consultants,
\nupon request, a detailed index to the microfiche or computerized record, which
\nmust be indexed in accordance with Developer’s practices. The Books and Records
\nare subject to the record retention and storage policies required by this
\nAgreement and by applicable Governmental Requirements. Developer shall retain
\nand maintain or cause such Books and Records to be retained and maintained for
\nat least six (6) years or such longer period as may be required by law.<\/p>\n
17.2 Review and Audit. Subject to Section 17.3, a third party auditor
\n —————- ————
\ndesignated by City (“City’s Auditor”) shall have the right to independently
\nexamine, audit, inspect and transcribe the Books and Records of Developer and
\nthe Casino Component Manager\/Operators. Developer shall make or cause to be made
\navailable Books and Records of the Casino Component Manager\/Operators for the
\naforesaid purpose. City agrees that any auditor that it designates as the City
\nAuditor shall either be knowledgeable in auditing casino operations or shall
\njoint venture the engagement with another auditor having such knowledge.<\/p>\n
17.3 Procedures. Any Books and Records required to be disclosed to City’s
\n ———-
\nConsultants and City’s Auditor pursuant to this Agreement shall be subject to
\nreasonable confidentiality restrictions and shall be available for review during
\nnormal business hours on reasonable notice at the offices of the Developer or
\nsuch Casino Component Manager\/Operator, as applicable, and may not be removed or
\ncopied without the consent of Developer or such Casino Component
\nManager\/Operator, as applicable, which consent shall not be unreasonably
\nwithheld. Such review shall be conducted in such a manner as to minimize, to
\nthe extent practicable, disruption and inconvenience to Developer and all Casino
\nComponent Manager\/Operators and their respective staff. Internal control
\nstandards and records required thereby shall be made available for review only
\nto City’s Auditor. The reasonable costs and expenses of (x) City’s Consultants
\nincurred pursuant to Section 17.1 shall be borne by Developer and (y) City
\n ————
\nincurred in connection with Section 17.2 shall be borne by City. The rights
\n ————
\ngranted to City under Sections 17.1 and 17.2 shall be in addition to and not in
\n ———————-
\nlimitation of any other inspection and\/or audit rights that City and\/or EDC may
\nhave under law.<\/p>\n
ARTICLE XVI<\/p>\n
INDEMNIFICATION<\/p>\n
18.1 Indemnification by Developer.
\n —————————- <\/p>\n
(a) On and after the Effective Date of this Agreement, Developer shall
\ndefend, indemnify and hold harmless City, EDC and each of their officers, agents
\nand employees (collectively the “Indemnitees” and individually an “Indemnitee”)
\nfrom and against any and all<\/p>\n
75<\/p>\n
liabilities, losses, damages, costs, expenses, claims, obligations, penalties
\nand causes of action (including without limitation, reasonable fees and expenses
\nfor attorneys, paralegals, expert witnesses and other consultants at the
\nprevailing market rate for such services) whether based upon negligence, strict
\nliability, absolute liability, product liability, misrepresentation, contract,
\nimplied or express warranty or any other principal of law, that are imposed
\nupon, incurred by or asserted against Indemnitees or which Indemnitees may
\nsuffer or be required to pay and which arise out of or relate in any manner to
\nany of the following occurring prior to the Termination Date: (1) the ownership,
\npossession, use, condition or occupancy of the Development or any part thereof
\nor any Improvement thereon; (2) the operation or management of the Development
\nor any part thereof; (3) the performance of any labor or services or the
\nfurnishing of any material for or on the Development or any part thereof or
\nenforcement of any liens with respect thereto; (4) any personal injury, death or
\nproperty damage suffered or alleged to have been suffered by Developer
\n(including Developer’s employees, agents or servants), the Casino Complex
\nOperator\/Managers (including their employees, agents or servants) or any third
\nperson as a result of any action or inaction of the Developer; (5) any work or
\nthings whatsoever done in, or on the Development or any portion thereof, or off-
\nsite pursuant to the terms of this Agreement; (6) the condition of any building,
\nfacilities or Improvements on the Project Premises or the Temporary Casino Site
\nor any non-public street, curb or sidewalk on the Project Premises or the
\nTemporary Casino Site, or any vaults, tunnels, malls, passageways or space
\ntherein; (7) any breach or default on the part of Developer for the payment,
\nperformance or observance of any of its obligations under all agreements entered
\ninto by Developer or any of its Affiliates relating to the performance of
\nservices or supplying of materials to the Development or any part thereof; (8)
\nany act, omission or negligence of any Space Tenant, or any of their respective
\nagents, contractors, servants, employees, licensees or other tenants; and (9)
\nany claim by a third party relating to or arising from any failure of Developer
\nto comply with all Governmental Requirements. In case any action or proceeding
\nshall be brought against any Indemnitee based upon any claim in respect of which
\nDeveloper has agreed to indemnify any Indemnitee, Developer will upon notice
\nfrom Indemnitee defend such action or proceeding on behalf of any Indemnitee at
\nDeveloper’s sole cost and expense and will keep Indemnitee fully informed of all
\ndevelopments and proceedings in connection therewith and will furnish Indemnitee
\nwith copies of all papers served or filed therein, irrespective of by whom
\nserved or filed. Developer shall defend such action with counsel it selects
\nprovided that such counsel is reasonably satisfactory to Indemnitee. Such
\ncounsel shall not be deemed reasonably satisfactory to Indemnitee if counsel
\nhas: (i) a legally cognizable conflict of interest with respect to City or EDC;
\n(ii) within the five (5) years immediately preceding such selection performed
\nlegal work for City or EDC which in their respective reasonable judgment was
\ninadequate; or (iii) frequently represented parties opposing City or EDC in
\nprior litigation. Each Indemnitee shall have the right, but not the obligation,
\nat its own cost, to be represented in any such action by counsel of its own
\nchoosing.<\/p>\n
(b) Notwithstanding anything to the contrary contained in Section
\n ——-
\n18.l(a) but further subject to Section 18.1(c) below, Developer shall not
\n——- —————
\nindemnify and shall have no responsibility to Indemnitees for: (i) any matter
\ninvolving the gross negligence or willful misconduct of any of the Indemnitees;
\n(ii) any matter giving rise to any liability of any of the Indemnitees prior to
\nthe Effective Date, except for such liabilities arising from acts or omissions
\nundertaken by or at the request or insistence of Developer; (iii) any liability
\narising with respect<\/p>\n
76<\/p>\n
to portions of the Development owned or under the control of the City, the EDC,
\nor any instrumentality or subdivision thereof prior to Effective Date which
\narises from any acts or omissions of any Indemnitee occurring prior to the
\nEffective Date; (iv) any liability arising with respect to any off-site
\nInfrastructure Improvements owned and under the control of the City which arises
\nfrom acts or omissions of the City; (v) any failure by the City or any
\nsubdivision or instrumentality thereof to exercise its police and similar public
\nsafety powers with respect to the Development, but only to the extent Developer
\nis not required to undertake or perform such services pursuant to the terms of
\nthis Agreement; or (vi) any breach by City or EDC of its obligations pursuant to
\nthis Agreement.<\/p>\n
(c) The foregoing exclusions from Developer’s obligation to indemnify
\nIndemnitees set forth in Section 18.1(b) above shall in no event apply to
\n —————
\nDeveloper’s environmental indemnity obligations set forth in Section 15.3.
\n ———— <\/p>\n
ARTICLE XIX<\/p>\n
ENTRY UPON PREMISES; INSPECTION<\/p>\n
19.1 Access and Inspection.
\n ——————— <\/p>\n
(a) City and\/or its representatives shall have the right at all
\nreasonable times, upon reasonable notice to Developer (except in the case of
\nemergency, in which event no notice shall be required), to enter the Development
\nfor the purposes of (1) inspection, (2) making of such repairs or performing
\nsuch acts that City and\/or EDC shall have the right to make or perform by the
\nAgreement provisions, or (3) determining whether Developer is complying with the
\nterms and conditions of this Agreement, including but not limited to compliance
\nwith Environmental Laws.<\/p>\n
(b) Developer may, during such inspection, have an employee or agent
\nof Developer escort any person so inspecting the Development and due precautions
\nshall be taken with respect to special security areas in the Development. City
\nand\/or EDC shall be allowed to take all material into and upon the Development
\nthat may be required for the inspections or repairs above mentioned as the same
\nis required for such purpose. In performing any such inspections or repairs,
\nCity and\/or EDC agrees to use reasonable efforts to minimize to the extent
\npracticable any disruption of or interference with occupancy, business or
\noperations of Developer or any Space Tenant, provided that nothing contained
\nherein shall require City and\/or EDC to perform such work outside of normal
\nbusiness hours.<\/p>\n
(c) Notwithstanding the foregoing, the EDC’s rights to enter the
\nDevelopment for the purposes set forth in Section 19.1(a) and (b) shall be
\n ———————–
\nlimited to construction matters.<\/p>\n
77<\/p>\n
ARTICLE XX<\/p>\n
TEMPORARY CASINO<\/p>\n
20.1 Developer’s Temporary Casino Obligations. Subject to Developer
\n —————————————-
\nacquiring or leasing a Temporary Casino Site (as herein defined), Developer may
\nelect to design, construct, finance and operate a Temporary Casino subject to
\nand in accordance with the terms of this Article XX and the other provisions of
\n ———-
\nthis Agreement, as applicable. In the event Developer makes such election, the
\nfollowing provisions in this Article XX shall apply.
\n ———- <\/p>\n
20.2 Temporary Casino Site.
\n ——————— <\/p>\n
(a) Developer shall select a land-based location for the Temporary
\nCasino (“Temporary Casino Site”), which Temporary Casino Site shall be subject
\nto the approval of the City. Developer hereby acknowledges that Developer will
\nacquire or lease, and develop the Temporary Casino Site at its sole cost and
\nexpense. Neither City nor EDC shall be required to contribute any funds or
\nperform any obligations in connection with Developer’s acquisition or lease and
\ndevelopment of the Temporary Casino Site.<\/p>\n
(b) At the time Developer submits the Temporary Casino Design
\nDocuments in accordance with Section 20.4, Developer shall submit plans for the
\n ————
\nreuse of the Temporary Casino Site and the Improvements thereon subsequent to
\nCompletion. Such plans may consist of using the Temporary Casino Site as a
\ntraining center or other purpose auxiliary to the operations of the Casino
\nComplex or such other use as the City may approve, which approval shall not be
\nunreasonably withheld. In no event shall Developer abandon the Temporary Casino
\nSite or allow the Improvements thereon to fall into a state of disrepair during
\nits ownership or lease of the Temporary Casino Site.<\/p>\n
(c) Developer shall pay City for all reasonable hard and soft costs,
\nincluding, without limitation, personnel and labor costs (excluding salaries,
\noverhead and other costs of City employees performing their normal functions)
\nrelating to the design and construction of any Infrastructure Improvements
\nnecessary or required for the Temporary Casino prior to the time that City
\nincurs any costs related thereto. The Developer shall have no responsibility to
\nmaintain or pay for the maintenance of any such Infrastructure Improvements once
\ninstalled. It is the intention of the parties that neither the City nor the EDC
\nshall be responsible to pay for or otherwise fund the construction of any such
\nInfrastructure Improvements, such costs and expenses being the sole
\nresponsibility of the utility in the case of any private or quasi-public
\nutilities or the responsibility of Developer in all other circumstances. Upon
\nreceipt of such funds, City agrees to use such funds to construct such
\nInfrastructure Improvements.<\/p>\n
20.3 Temporary Casino Financing. Developer shall submit to City its plan
\n ————————–
\nfor obtaining funds to finance the acquisition of the Temporary Casino Site and
\nthe design construction and operation of the Temporary Casino. Such funds shall
\nbe on such terms and conditions as are acceptable to City in the exercise of its
\ncommercially reasonable judgment. Any borrowed funds shall be from a Suitable
\nLender.<\/p>\n
78<\/p>\n
20.4 Temporary Casino Design Documents.
\n ——————————— <\/p>\n
(a) Developer shall prepare and submit schematic design drawings for
\nthe Temporary Casino in sufficient detail to establish the size and character of
\nthe Temporary Casino (the “Temporary Casino Design Documents”), to City for
\nreview and approval, together with such other drawings, documents and other
\nsupporting information as reasonable required by City in connection with City’s
\nreview of the Temporary Casino Design Documents.<\/p>\n
(b) Developer covenants and agrees to cause the Temporary Casino to be
\ndesigned as close to First Class Casino Complex Standards as the Temporary
\nCasino Site will permit. Developer covenants and agrees that the Temporary
\nCasino shall have a gaming floor area of not less than thirty-five thousand
\n(35,000) square feet nor more than one hundred thousand (100,000) square feet.<\/p>\n
(c) Neither City nor the EDC shall be responsible for any error or
\nomission in the Temporary Casino Design Documents, or for failure of the
\nTemporary Casino Design Documents, or a part thereof, to comply with
\nGovernmental Requirements, or for Temporary Casino Design Documents that result
\nin or cause a defective design or construction.<\/p>\n
20.5 Approval Procedures.
\n ——————- <\/p>\n
(a) Provided that by May 1, 1998 the Developer has identified its
\nTemporary Casino Site and submitted to the City the information required
\nfrom Developer under Article XX (the “Temporary Casino Information”), the
\n ———-
\nMayor, within ten (10) Business Days of (i) being satisfied with the Temporary
\nCasino Information and (ii) reaching agreement with the Developer on funding law
\nenforcement training activities in connection with the Temporary Casino as a
\npartial advance against the first year’s Municipal Services Fee, shall transmit
\nthe Temporary Casino Information to the City Council for approval. The Mayor
\nshall act within a reasonable period of time under the circumstances.<\/p>\n
(b) Provided that by May 1, 1998 the Mayor (i) receives information
\nfrom the Other Land-Based Casino Developers concerning their temporary
\ncasinos as and to the extent required under the casino development
\nagreements with the City which information is satisfactory to the Mayor
\n(including but not limited to the information required by Section 2.6(l))
\n ————–
\nand (ii) reaches agreement with the Other Land-Based Casino Developers on
\nfunding law enforcement training activities in connection with their temporary
\ncasinos as a partial advance against the first year’s Municipal Services Fee,
\nthe Mayor shall submit the Temporary Casino Information and the comparable
\ninformation of any of the Other Land-Based Casino Developers who satisfy clauses
\n(i) and (ii) (collectively, the “Temporary Casino Proposals”) to the City
\nCouncil for approval in a single transmission.<\/p>\n
(c) Provided City Council approves all but not less than all of the
\nTemporary Casino Proposals submitted pursuant to Section 20.5(b), including
\n —————
\nall necessary zoning changes therefor, Developer shall have the right to
\ncommence construction of its Temporary Casino, <\/p>\n
79<\/p>\n
subject to applicable provisions of this Agreement. Notwithstanding the failure
\nof any other Land-Based Casino Developer to have satisfied clauses (i) and (ii)
\nof Section 20.5(b), the Mayor shall submit the Temporary Casino Proposals of the
\n —————
\nDeveloper and any other Land-Based Casino Developer who does satisfy clauses (i)
\nand (ii) of Section 20.5(b) to the City Council for approval.
\n —————<\/p>\n
(d) Nothing shall preclude the Developer from submitting its Temporary
\nCasino Information to the Mayor after May 1, 1998. Provided City Council
\napproves any such subsequently submitted Temporary Casino Proposals together
\nwith all necessary zoning changes therefor, Developer shall have the right to
\ncommence construction of its Temporary Casino, subject to applicable provisions
\nof this Agreement.<\/p>\n
20.6 Construction of Temporary Casino.
\n ——————————– <\/p>\n
(a) Developer shall cause Contractor to construct the Temporary Casino
\nand perform the Work under the supervision and control of Developer. Developer
\nshall cause Contractor(s) to deliver to the City copies of the temporary and
\nfinal certificates of occupancy for the Temporary Casino. Developer shall give
\nnotices and comply, and shall use all reasonable efforts to cause Contractor and
\nall Consultants to comply, with all Governmental Requirements applicable to the
\nWork, and shall obtain all permits, licenses or other authorizations necessary
\nfor the prosecution of the Work.<\/p>\n
(b) All Work shall be performed in a good and workmanlike manner and
\nin accordance with good construction practices. All materials used in the
\nconstruction of the Temporary Casino and the quality of the interiors and Finish
\nWork for the Temporary Casino, shall meet or exceed First Class Casino Complex
\nStandards. The quality of the materials utilized in the interior and the
\nexterior of the Temporary Casino shall be subject to the reasonable approval of
\nthe City.<\/p>\n
(c) Time being of the essence, Developer, after receipt of all
\nrequired Permits, shall, subject to the terms and provisions of this Agreement,
\nprosecute the Work diligently, using such means and methods of construction and
\nsufficient employees as Developer reasonably believes are necessary to maintain
\nthe progress of the Work and to complete the Temporary Casino in accordance with
\nthe requirements of the construction documents no later than the temporary
\ncasino opening date.<\/p>\n
20.7 Temporary Casino Operations.
\n ————————— <\/p>\n
(a) Developer agrees to exert all commercially reasonable efforts to
\ndevelop, operate and maintain the Temporary Casino in a manner consistent
\nwith First Class Casino Complex Standards and all Governmental
\nRequirements.<\/p>\n
(b) Developer agrees to cease all Casino Gaming Operations at the
\nTemporary Casino on the Completion Date.<\/p>\n
80<\/p>\n
20.8 Restriction on Payments. Developer covenants and agrees that until
\n ———————–
\nthe Completion Date, Developer shall not declare or pay any dividends or make
\nany other distributions to any members of Developer or their respective
\nAffiliates except:<\/p>\n
(a) for Permitted Affiliate Payments; or<\/p>\n
(b) provided Developer is not otherwise then restricted in making
\ndistributions under Section 7.13:
\n ———— <\/p>\n
(1) for distributions to Partners Detroit, LLC according to the
\n terms of Developer’s operating agreement (without giving effect to any
\n amendments made to the copy of such operating agreement submitted in
\n connection with its RFP\/Q), made subsequent to the payment by
\n Developer of its Pro Rata Portion of the Feehold Compensation due upon
\n the closing of the purchase of the Project Premises pursuant to the
\n Conveyance Agreement; and<\/p>\n
(2) for distributions to Developer’s members made subsequent to
\n the completion of the construction of the foundation for any Covered
\n Component.<\/p>\n
ARTICLE XXI<\/p>\n
MISCELLANEOUS<\/p>\n
21.1 Notices. Notices shall be given as follows:
\n ——- <\/p>\n
(a) Any notice, demand or other communication which any party may
\ndesire or may be required to give to any other party shall be in writing
\ndelivered by (i) hand-delivery, (ii) a nationally recognized overnight courier,
\n(iii) telecopy, or (iv) mail (but excluding electronic mail, i.e., “e-mail”)
\naddressed to a party at its address set forth below, or to such other address as
\nthe party to receive such notice may have designated to all other parties by
\nnotice in accordance herewith:<\/p>\n
If to City: Mayor
\n City of Detroit
\n 1126 City-County Building
\n Detroit, Michigan 48226
\n Telecopier No.: 313-224-4433<\/p>\n
with copies to: Corporation Counsel
\n City of Detroit
\n First National Building
\n 660 Woodward Avenue
\n Suite 1650
\n Detroit, Michigan 48226
\n Telecopier No.: 313-224-5505<\/p>\n
81<\/p>\n
If to EDC: The Economic Development Corporation
\n of the City of Detroit
\n 211 West Fort Street
\n Suite 900
\n Detroit, Michigan 48226
\n Telecopier No.: 313-963-9786<\/p>\n
If to Developer: MGM Grand Detroit, L.L.C.
\n c\/o MGM Grand, Inc.
\n 3799 Las Vegas Boulevard South
\n Las Vegas, Nevada 89109
\n Attention: John Redmond, Senior V.P.
\n Telecopier No.: 702-891-3369<\/p>\n
with copies to: Dickinson Wright PLLC
\n 500 Woodward Avenue
\n Suite 4000
\n Detroit, Michigan 48226-3425
\n Attention: James N. Candler, Jr., Esq.
\n Telecopier No.: 313-223-3598<\/p>\n
– and –<\/p>\n
Christensen, Miller, Fink, Jacobs, Glaser,
\n Weil & Shapiro, LLP
\n 2121 Ave. Of the Stars
\n 18th Floor
\n Los Angeles, California 90067
\n Attention: Gary N. Jacobs, Esq.
\n Telecopier No.: 310-556-2920<\/p>\n
– and –<\/p>\n
Partners Detroit, LLC
\n c\/o Malan Realty Investors, Inc.
\n 30200 Telegraph Road
\n Suite 105
\n Birmingham, Michigan 48025-4503
\n Attention: Anthony S. Gramer
\n Telecopier No.: 248-644-7880<\/p>\n
(b) Any such notice, demand or communication shall be deemed
\ndelivered and effective upon the earlier to occur of actual delivery or, if
\ndelivered by telecopier, the same day as confirmed by telecopier transmission or
\nthe first Business Day thereafter if telecopied on a non-Business Day.<\/p>\n
82<\/p>\n
21.2 Non-Action or Failure to Observe Provisions of this Agreement. The
\n ————————————————————-
\nfailure of City, EDC or Developer to promptly insist upon strict performance of
\nany term, covenant, condition or provision of this Agreement, or any Exhibit
\nhereto, or any other agreement contemplated hereby, shall not be deemed a waiver
\nof any right or remedy that City, EDC or Developer may have, and shall not be
\ndeemed a waiver of a subsequent default or nonperformance of such term,
\ncovenant, condition or provision.<\/p>\n
21.3 Applicable Law and Construction. The laws of the State shall govern
\n ——————————-
\nthe validity, performance and enforcement of this Agreement. This Agreement has
\nbeen negotiated by City, EDC and Developer, and the Agreement, including,
\nwithout limitation, the Exhibits, shall not be deemed to have been negotiated
\nand prepared by City, EDC or Developer, but by each of them.<\/p>\n
21.4 Submission to Jurisdiction.
\n ————————– <\/p>\n
(a) Each party to this Agreement hereby submits to the jurisdiction of
\nthe Wayne County Circuit Court, the appellate courts of the State and to the
\njurisdiction of the United States District Court for the Eastern District of the
\nState, for the purposes of any suit, action or other proceeding arising out of
\nor relating to this Agreement, and hereby agrees not to assert by way of a
\nmotion as a defense or otherwise that such action is brought in an inconvenient
\nforum or that the venue of such action is improper or that the subject matter
\nthereof may not be enforced in or by such courts.<\/p>\n
(b) If at any time during the term of this Agreement, Developer is not
\na resident of the State or has no officer, director, employee, or agent thereof
\navailable for service of process as a resident of the State, or if any permitted
\nassignee thereof shall be a foreign corporation, partnership or other entity or
\nshall have no officer, director, employee, or agent available for service of
\nprocess in the State, Developer or its assignee hereby designates the Secretary
\nof State of the State, as its agent for the service of process in any court
\naction between it and City and\/or EDC or arising out of or relating to this
\nAgreement and such service shall be made as provided by the laws of the State
\nfor service upon a non-resident; provided, however, that at the time of service
\non the Secretary of State, copy of such service shall be delivered to Developer
\nin the manner provided in Section 21.1.
\n ———— <\/p>\n
21.5 Complete Agreement. This Agreement, and all the documents and
\n ——————
\nagreements described or referred to herein, including without limitation the
\nExhibits hereto, constitute the full and complete agreement between the parties
\nhereto with respect to the subject matter hereof, and supersedes and controls in
\nits entirety over any and all prior agreements, understandings, representations
\nand statements whether written or oral by each of the parties hereto.<\/p>\n
21.6 Holidays. It is hereby agreed and declared that whenever a notice or
\n ——–
\nperformance under the terms of this Agreement is to be made or given on a day
\nother than a Business Day, it shall be postponed to the next following Business
\nDay.<\/p>\n
83<\/p>\n
21.7 Exhibits. Each Exhibit referred to and attached to this Agreement is
\n ——–
\nan essential part of this Agreement.<\/p>\n
21.8 No Brokers. City, EDC and Developer hereby represent, agree and
\n ———-
\nacknowledge that no real estate broker or other person is entitled to claim or
\nto be paid a commission as a result of the execution and delivery of this
\nAgreement.<\/p>\n
21.9 No Joint Venture. City and EDC on the one hand and Developer on the
\n —————-
\nother, agree that nothing contained in this Agreement or any other documents
\nexecuted in connection herewith is intended or shall be construed to establish
\nCity and\/or EDC and Developer as joint venturers or partners.<\/p>\n
21.10 Governmental Authorities. Notwithstanding any other provisions of
\n ————————
\nthis Agreement, any required permitting, licensing or other regulatory approvals
\nby any Governmental Authorities shall be subject to and undertaken in accordance
\nwith the established procedures and requirements of such authority, as may be
\napplicable, with respect to similar projects and in no event shall the
\nGovernmental Authority by virtue of any provision of this Agreement be obligated
\nto take any actions concerning regulatory approvals except through its
\nestablished processes.<\/p>\n
21.11 Technical Amendments. In the event that there are minor
\n ——————–
\ninaccuracies contained herein or any Exhibit attached hereto or any other
\nagreement contemplated hereby, or the parties agree that changes are required
\ndue to unforeseen events or circumstances, or technical matters arising during
\nthe term of this Agreement, which changes do not alter the substance of this
\nAgreement, the respective officers of City and EDC, and the officers of
\nDeveloper, are authorized to approve such changes, and are authorized to execute
\nany required instruments, to make and incorporate such amendment or change to
\nthis Agreement or any Exhibit attached hereto or any other agreement
\ncontemplated hereby.<\/p>\n
21.12 Unlawful Provisions Deemed Stricken. If this Agreement contains any
\n ———————————–
\nunlawful provisions not an essential part of this Agreement and which shall not
\nappear to have a controlling or material inducement to the making thereof, such
\nprovisions shall be deemed of no effect and shall be deemed stricken from this
\nAgreement without affecting the binding force of the remainder. In the event
\nany provision of this Agreement is capable of more than one interpretation, one
\nwhich would render the provision invalid and one which would render the
\nprovision valid, the provision shall be interpreted so as to render it valid.<\/p>\n
21.13 No Liability for Approvals and Inspections. Except as may be
\n ——————————————
\notherwise expressly provided herein, no approval to be made by City, EDC or the
\nPM under this Agreement or any inspection of the Work by City, EDC or the PM
\nunder this Agreement, shall render City and\/or EDC liable for failure to
\ndiscover any defects or non-conformance with this Agreement, or a violation of
\nor noncompliance with any federal, state or local statute, regulation, ordinance
\nor code.<\/p>\n
21.14 Time of the Essence. All times, wherever specified herein for the
\n ——————-
\nperformance by Developer of its obligations hereunder, are of the essence of
\nthis Agreement.<\/p>\n
84<\/p>\n
21.15 Captions. The captions of this Agreement are for convenience of
\n ——–
\nreference only and in no way define, limit or describe the scope or intent of
\nthis Agreement or in any way affect this Agreement.<\/p>\n
21.16 Arbitration.
\n ———– <\/p>\n
(a) Matters Subject to Arbitration. In case of a dispute between
\n ——————————
\nDeveloper, on the one hand, and either City and\/or EDC on the other, with
\nrespect to any disagreement under this Agreement other than a disagreement with
\nrespect to any of the following items, the parties shall in good faith attempt
\nto resolve such dispute through informal negotiations (“Negotiations”). In the
\nevent the parties reach a resolution during Negotiations such resolution shall
\nbe set forth in a writing signed by all parties and may be enforced in any court
\nof competent jurisdiction as if it were an arbitration award, pursuant to
\nSection 21.16(j). In the event either party determines in its sole discretion
\n—————-
\nthat a resolution cannot be reached during the Negotiations, such party may
\ndeliver to the other party written notice to terminate the Negotiations and to
\nrefer the disagreement to binding arbitration consistent with the procedures set
\nforth below. The decision of the arbitrator or arbitrators shall be final and
\nbinding upon the parties, and a judgment may be rendered thereon in any court of
\ncompetent jurisdiction. The matters not subject to arbitration hereunder are as
\nfollows:<\/p>\n
(1) Any dispute arising under Section 2.6.
\n ———– <\/p>\n
(2) Any dispute asserted by City and\/or EDC which could give
\n rise to an Event of Default to which a Mandatory Sale is a remedy available
\n to City.<\/p>\n
(b) Commencement. The Negotiations shall be initiated by the
\n ———–
\nclaiming party serving written notice upon the other party requesting
\ncommencement of informal negotiations. If either party determines that
\nNegotiations should be terminated and arbitration shall be commenced, said party
\nshall initiate arbitration proceedings by serving written notice upon the other
\nparty requesting that the dispute be resolved by arbitration. All notices sent
\npursuant to this Section 21.16, shall set forth a statement of claim from the
\n ————-
\nclaiming party indicating with specificity the nature and extent of the matter
\nin dispute, together with the relief requested.<\/p>\n
(c) Situs of hearing. Any Negotiations and\/or hearings held
\n —————-
\npursuant to this Section 21.16 shall be conducted in Detroit, Michigan, or at
\n ————-
\nsuch other place as may be selected by mutual written agreement of the parties.<\/p>\n
(d) Selection of Arbitrator.
\n ———————– <\/p>\n
(1) Within fifteen (15) days of being served with the statement
\n of claim the parties to the arbitration shall appear by counsel and meet to
\n attempt to agree on a single arbitrator to decide the subject claim. If the
\n parties to the arbitration cannot agree on a single arbitrator within
\n fifteen (15) days after the appearance of counsel, then each party shall
\n select an arbitrator, and the two (2) arbitrators so selected shall together
\n select <\/p>\n
85<\/p>\n
a third (3rd) arbitrator within fifteen (15) days. The three (3)
\n arbitrators so selected shall thereafter decide the matter in dispute. In
\n the event both the City and EDC are parties to the arbitration, then the
\n City and EDC, collectively, shall select one arbitrator and Developer shall
\n select the second arbitrator.<\/p>\n
(2) In order to expedite any arbitration regarding construction
\n matters, the parties shall, within ninety (90) days of the Closing Date,
\n select an arbitrator or if the parties cannot agree on a single arbitrator
\n within such ninety (90) days, then each party shall select an arbitrator,
\n and the two (2) arbitrators so selected shall select a third (3rd)
\n arbitrator within thirty (30) days, which arbitrator or panel shall be
\n available to hear any dispute concerning construction matters arising under
\n this Agreement during the period of construction of the Casino Complex. In
\n the event both the City and EDC are parties to the arbitration, then the
\n City and EDC shall collectively, select one arbitrator and Developer shall
\n select the second arbitrator. With respect to any dispute concerning
\n construction matters, the arbitrator or arbitrators selected shall be
\n knowledgeable in construction disputes involving major projects.<\/p>\n
(3) With respect to any dispute concerning gaming matters, the
\n arbitrator or arbitrators selected shall be knowledgeable in casino gaming
\n matters and selected in the same manner as set forth in Section 21.16(d)(1).
\n ——————- <\/p>\n
(4) If the parties are unable to agree on a single arbitrator,
\n and thereafter if either party fails to select an arbitrator within fifteen
\n (15) days, then the arbitrator or arbitrators shall be chosen, on the
\n application of any party, by any court of competent jurisdiction.<\/p>\n
(e) Rules and Procedures. The statement of claim and all subsequent
\n ———————
\nproceedings in the arbitration shall be governed by the Commercial Arbitration
\nRules of the American Arbitration Association, as amended from time to time, but
\nthe arbitration itself shall not be administered by or proceed before the
\nAmerican Arbitration Association. Any subject claim that a party has breached
\nthis Agreement by failing to pay any money when due and payable or has failed to
\nperform a duty or obligation hereunder, which is presented in accordance
\nherewith, shall proceed expeditiously and, to the extent applicable, the
\nCommercial Arbitration Rule’s Expedited Procedures (other than as to appointment
\nof the arbitrator) shall apply.<\/p>\n
(f) Modification of Rules and Procedures. The parties to any
\n ————————————-
\narbitration subject to this Agreement may on an ad hoc basis stipulate in
\nwriting to modify the rules and procedures set forth herein that will govern the
\nparticular arbitration to which they are the parties; provided, however, that no
\nsuch stipulation and modification shall govern, or have any precedential value
\nwhatsoever for, any other or subsequent arbitration or shall affect in any way
\nthe construction or interpretation of this Agreement.<\/p>\n
(g) Scope of Authority. Except as otherwise provided in this
\n ——————
\nAgreement, including but not limited to the provisions set forth in Article
\n ——-
\nX and Section 6.7, the Arbitrator or Arbitrators shall have the authority
\n– ———–
\nto award any and all legal and equitable remedies that a <\/p>\n
86<\/p>\n
court of this state could order or grant, including, without limitation,
\nspecific performance of any obligation created under the Agreement, the issuance
\nof an injunction or the imposition of sanctions for abuse or frustration of the
\narbitration process.<\/p>\n
(h) Interim Relief. Either party may, without inconsistency with this
\n ————–
\nAgreement, seek from a court of competent jurisdiction any interim or
\nprovisional relief that may be necessary to protect the rights or property of
\nthat party and to preserve the status quo, pending the establishment of the
\narbitral tribunal. If a party is successful in achieving such interim or
\nprovisional relief, the arbitral tribunal, once established, is authorized to:
\n(x) continue such relief pending the arbitral tribunal’s determination of the
\nmerits of the controversy; (y) modify such relief as deemed equitable by the
\nArbitrator(s) pending the arbitral tribunal’s determination of the merits of the
\ncontroversy; or (z) immediately terminate such relief and proceed with a
\nresolution of merits of the controversy.<\/p>\n
(i) Costs of Arbitration. The costs of the arbitrator shall be split
\n ——————–
\nequally by the parties to an arbitration, but the arbitrator shall provide in
\nthe award that if City and\/or EDC is the prevailing party, such party shall
\nrecover its share of such costs as well as its reasonable attorneys’ fees and
\nother costs from Developer. If the Developer is the prevailing party, the
\nDeveloper shall have no obligation to pay the attorney’s fees and costs of City
\nand\/or EDC and the Developer shall recover its share of costs and reasonable
\nattorney’s fees if and only if the arbitrator finds that the claims of the City
\nand\/or EDC are frivolous and that City and\/or EDC are subject to sanctions
\ntherefor.<\/p>\n
(j) Enforcement. If either party refuses to participate in
\n ————
\narbitration of any dispute subject to arbitration under the terms of this
\nAgreement, a party may seek to compel arbitration in accordance herewith in any
\ncourt of competent jurisdiction. If any party fails to comply with a final award
\nor order of arbitration, a party may seek an order from any court of competent
\njurisdiction confirming, vacating or modifying any such final arbitration award
\nor order obtained in accordance with this Agreement and enforcing any judgment
\nupon such confirmed or modified award.<\/p>\n
(k) Parties Subject to Arbitration. This Section 21.16 is applicable
\n —————————— ————-
\nto disputes arising between the Developer, on one hand, and either the City
\nand\/or EDC on the other, regarding disputes, claims, questions, or
\ndisagreements arising out of or relating to each parties’ rights, duties
\nand\/or obligations established pursuant to this Agreement. Section 21.16
\n ————-
\nshall in no way limit the right of the City or its agencies, authorities and\/or
\ninstrumentalities or Developer to institute proceedings in any court of
\ncompetent jurisdiction from disputes, claims, questions, or disagreements
\narising between Developer and the City or its agencies, authorities and\/or
\ninstrumentalities while the City or its agencies, authorities and\/or
\ninstrumentalities are acting pursuant to their normal City functions such as,
\nwithout limitation, disputes arising from the permitting and\/or inspection
\nprocesses.<\/p>\n
(l) Confidentiality. Subject to applicable law, the parties and the
\n —————
\narbitrator(s) agree to maintain the substance of any proceedings hereunder
\nin confidence.<\/p>\n
87<\/p>\n
21.17 Sunset Provision.
\n —————- <\/p>\n
(a) The obligations imposed on Developer by and under the following
\nprovisions of this Agreement shall lapse and be of no further force or
\neffect seven (7) years after the Execution Date: Sections 3.2, 3.3, 3.5 and
\n ————————–
\n7.7.
\n— <\/p>\n
(b) The obligations imposed on Developer by and under the following
\nprovisions of this Agreement shall lapse and be of no further force or
\neffect ten (10) years after the Execution Date: Sections 7.2, 7.11 and
\n ———————-
\n7.16.
\n—- <\/p>\n
(c) The obligations imposed on Developer by and under Section 7.17
\n ————
\nshall lapse and be of no further force or effect thirty-five (35) years
\nafter the Execution Date.<\/p>\n
(d) The obligations imposed on Developer by and under Section 7.3
\n ———–
\nshall lapse and be of no further force or effect ten (10) years after the
\nClosing Date.<\/p>\n
21.18 Compliance. Any provision that permits or requires a party to take
\n ———-
\naction shall be deemed to permit or require, as the case may be, the party to
\ncause the action to be taken.<\/p>\n
21.19 Table of Contents. The table of contents is for the purpose of
\n —————–
\nconvenience only and is not to be deemed or construed in any way as part of this
\nAgreement or as supplemental thereto or amendatory thereof.<\/p>\n
21.20 Number and Gender. All terms used in this Agreement, regardless of
\n —————–
\nthe number or gender in which they are used, shall be deemed to include any
\nother number and any gender as the context may require.<\/p>\n
21.21 Third Party Beneficiary. Except as set forth in Section 2.4(b),
\n ———————– ————–
\nthere shall be no third party beneficiaries with respect to this Agreement.<\/p>\n
21.22 Cost of Investigation. If as a result of the Agreement, City or any
\n ———————
\nof their directors or officers, the Mayor, or any City Council members, or any
\nemployee, agent, or representative of City is required to be licensed, or
\napproved by the Board, one-third (1\/3) of all reasonable costs of such
\nlicensing, approval or investigation shall be paid by Developer within five (5)
\nBusiness Days following receipt of a written request from City.<\/p>\n
21.23 Attorneys’ Fees. Developer shall pay all of City’s and EDC’s costs,
\n —————
\ncharges and expenses, including court costs and attorneys’ fees, incurred in
\nenforcing Developer’s obligations under this Agreement or incurred by City or
\nEDC in any action brought by Developer in which City or EDC is the prevailing
\nparty. If the Developer is the prevailing party, the Developer shall have no
\nobligation to pay the attorneys’ fees and costs of City and\/or EDC and the
\nDeveloper shall recover its share of costs and reasonable attorneys’ fees if and
\nonly if the court finds that the claims of the City and\/or EDC are frivolous and
\nthat City and\/or EDC are subject to sanctions.<\/p>\n
88<\/p>\n
21.24 Further Assurances. City, EDC and Developer will cooperate and work
\n ——————
\ntogether in good faith to the extent reasonably necessary and commercially
\nreasonable to accomplish the mutual intent of the parties that the Development
\nbe successfully completed as expeditiously as is reasonably possible.<\/p>\n
21.25 Estoppel Certificates. City and EDC shall, at any time and from
\n ———————
\ntime to time, upon not less than fifteen (15) Business Days prior written notice
\nfrom any lender of Developer, execute and deliver to any lender of Developer an
\nestoppel certificate in the form attached hereto as Exhibit 21.25.
\n ————- <\/p>\n
21.26 Most Favored Nations Provision. City and EDC agree that in the
\n ——————————
\nevent: (i) either of the development agreements of either Other Land-Based
\nCasino Developer are amended in any material respect, City and EDC shall offer
\nto Developer the same amendment to this Agreement with such conforming changes
\nas may be reasonably required, provided, however, that City’s and EDC’s
\nobligation under this Section 21.26 shall end thirty-five (35) years subsequent
\n ————-
\nto the Closing Date with respect to any amendment to Section 7.17 and ten (10)
\n ————
\nyears subsequent to the Closing Date with respect to all other amendments to
\nthis Agreement; and (ii) they waive any of the conditions imposed by Sections
\n ——–
\n2.4(a)(1), (2), (4) or (7) under either of the development agreements of either
\n————————–
\nOther Land-Based Casino Developer, they shall offer to waive such condition for
\nDeveloper.<\/p>\n
21.27 Developer’s Right to Terminate. Upon written notice delivered by
\n ——————————
\nDeveloper to City and EDC within ten (10) Business Days from the Execution Date,
\nDeveloper may terminate this Agreement if Developer’s Board of Directors fails
\nto approve this Agreement.<\/p>\n
21.28 Counterparts. This Agreement may be executed in counterparts,
\n ————
\neach of which shall be deemed to be an original document and together shall
\nconstitute one instrument.<\/p>\n
[Signatures on next page]<\/p>\n
89<\/p>\n
IN WITNESS WHEREOF, the parties hereto have set their hands and had their
\nseals affixed on the dates set forth after their respective signatures.<\/p>\n
CITY OF DETROIT, a municipal
\n corporation<\/p>\n
By: \/s\/
\n —————————————-
\n Its:
\n ————————————<\/p>\n
THE ECONOMIC DEVELOPMENT
\n CORPORATION OF THE CITY OF
\n DETROIT, a Michigan public body
\n corporate<\/p>\n
By: \/s\/
\n —————————————-
\n Its:
\n ————————————
\n By: \/s\/
\n —————————————-
\n Its:
\n ————————————<\/p>\n
MGM GRAND DETROIT, LLC, a Delaware
\n limited liability company<\/p>\n
By: \/s\/
\n —————————————-
\n Its: Chief Financial Officer<\/p>\n
90<\/p>\n
IN WITNESS WHEREOF, the parties hereto have set their hands and had their
\nseals affixed on the dates set forth after their respective signatures.<\/p>\n
CITY OF DETROIT, a municipal
\n corporation<\/p>\n
By: \/s\/
\n —————————————-
\n Its:
\n ————————————<\/p>\n
THE ECONOMIC DEVELOPMENT
\n CORPORATION OF THE CITY OF
\n DETROIT, a Michigan public body
\n corporate<\/p>\n
By: \/s\/
\n —————————————-
\n Its:
\n ————————————
\n By: \/s\/
\n —————————————-
\n Its:
\n ————————————<\/p>\n
MGM GRAND DETROIT, LLC, a Delaware
\n limited liability company<\/p>\n
By: \/s\/
\n —————————————-
\n Its: Chief Financial Officer<\/p>\n
EXHIBIT 1.1(a)(19): DESCRIPTION OF CASINO
\n AREA AND PUBLIC LAND
\n —————————————–<\/p>\n
WATERFRONT RECLAMATION & CASINO
\n DEVELOPMENT PROJECT AREA<\/p>\n
[MAP OF PROJECT AREA]<\/p>\n
EXHIBIT 1.1(a)(19): DESCRIPTION OF CASINO
\n AREA AND PUBLIC LAND
\n —————————————–<\/p>\n
WATERFRONT RECLAMATION & CASINO
\n DEVELOPMENT PROJECT AREA<\/p>\n
[MAP OF PROJECT AREA]<\/p>\n
EXHIBIT 1.1(a)(19): DESCRIPTION OF CASINO
\n AREA AND PUBLIC LAND
\n —————————————–<\/p>\n
WATERFRONT RECLAMATION & CASINO
\n DEVELOPMENT PROJECT AREA<\/p>\n
[MAP OF PROJECT AREA]<\/p>\n
EXHIBIT 1.1(a)(30): FORM OF PARENT COMPANY’S CLOSING CERTIFICATE
\n —————————————————————–<\/p>\n
CLOSING CERTIFICATE<\/p>\n
Pursuant to Section 2.14 of that certain development agreement dated as of
\n________________, 1998 (the “Development Agreement”), by and among the City of
\nDetroit (the “City”), the Economic Development Corporation of the City of
\nDetroit (“EDC”) and ________________________________, a ____________ limited
\nliability company (the “Company”), ______________ , a ____________ corporation
\n(the “Parent Company”) hereby certifies to the City and EDC that:<\/p>\n
(i) No Defense to Performance. There is no fact, event or condition
\n ————————-
\n which exists as of the date hereof which, if asserted by Company or Parent
\n Company, would excuse Parent Company from performing its obligations under
\n that certain guaranty and keepwell agreement, dated _______________ (the
\n “Guaranty Agreement”) being delivered pursuant to Section 2.14 of the
\n ————
\n Development Agreement.<\/p>\n
(ii) No Event of Default. There is no event or condition, which with
\n ——————-
\n the passage of time or the giving of notice or both, is or would give rise
\n to an Event of Default (as that term is defined in the Development
\n Agreement).<\/p>\n
(iii) Resolutions. Attached hereto as “Exhibit A” is a true and
\n ———– ———
\n correct copy of the resolutions approving the execution, delivery and
\n performance of the obligations of the Parent Company under the (x) Guaranty
\n Agreement and (y) agreement to abide by the radius restriction being
\n delivered pursuant to Section 2.14 of the Development Agreement
\n ————
\n (collectively with the Guaranty Agreement, the “Agreements”), that have
\n been duly adopted at a meeting of, or by the written consent of, the Parent
\n Company, and none of such resolutions have been amended, modified, revoked
\n or rescinded in any respect since their respective dates of execution, and
\n all of such resolutions are in full force and effect on the date hereof in
\n the form adopted.<\/p>\n
(iv) Ownership of Shares. As of the date hereof, Parent Company owns
\n ——————-
\n all of the issued and outstanding capital stock of ______________________.<\/p>\n
(v) No Violation. Neither execution of the Agreements nor discharge
\n ————
\n by the Parent Company of any of its obligations thereunder shall cause
\n Parent Company to be in violation of any applicable law or regulation, its
\n charter or other organizational documents of any agreement to which it is a
\n party.<\/p>\n
Dated:__________________________ [NAME OF PARENT COMPANY]<\/p>\n
By:____________________________
\n Its:______________________<\/p>\n
EXHIBIT 1.1(a)(30): FORM OF DEVELOPER’S CLOSING CERTIFICATE
\n ———————————————————–<\/p>\n
CLOSING CERTIFICATE<\/p>\n
Pursuant to Section 2.14 of that certain development agreement dated as of
\n ————
\n__________, 1998 (the “Development Agreement”), by and among the City of Detroit
\n(the “City”), the Economic Development Corporation of the City of Detroit
\n(“EDC”) and ___________________ _______________, a __________ limited liability
\ncompany (the “Company”), the Company hereby certifies to the City and EDC that:<\/p>\n
(i) Representations and Warranties. Each of the representations and
\n ——————————
\n warranties made by the Company in Sections 8.1(a), (ff) and (gg) of the
\n ——————————
\n Development Agreement is true and correct in all material respects as of
\n the date hereof, with the same force and effect as though such
\n representations and warranties had been made as of the date hereof.<\/p>\n
(ii) Satisfaction of Obligations. The Company has performed and
\n —————————
\n complied with all of its obligations required by the Development Agreement
\n to be performed or complied with at or prior to the date hereof;<\/p>\n
(iii) No Event of Default. There exists no event or condition, which
\n ——————-
\n with the passage of time or the giving of notice or both, is or would give
\n rise to an Event of Default (as that term is defined in the Development
\n Agreement).<\/p>\n
(iv) Certificate of Incorporation. Attached hereto as “Exhibit A” is
\n —————————- ———
\n a true, correct and complete copy of the Certificate of Limited Liability
\n Company of the Company, together with any and all amendments thereto, as on
\n file with the any and all amendments thereto, as on file with the Secretary
\n of State of __________, and no action has been taken to amend, modify or
\n repeal such Certificate of Limited Liability Company, the same being in
\n full force and effect in the attached form as of the date hereof;<\/p>\n
(v) Operating Agreement. No action has been taken to amend, modify
\n ——————-
\n or repeal Developer’s Operating Agreement, the same being in full force and
\n effect in the form previously delivered to City by Developer in connection
\n with the RFP\/Q (as that term is defined in the Development Agreement).<\/p>\n
(vi) Resolutions. Attached hereto as “Exhibit B” is a true and
\n ———– ———
\n correct copy of the resolutions approving the execution, delivery and
\n performance of the obligations of the Company under the Development
\n Agreement that have been duly adopted at a meeting of, or by the written
\n consent of, the Company, and none of such resolutions have been amended,
\n modified, revoked or rescinded in any respect since <\/p>\n
1<\/p>\n
their respective dates of execution, and all of such resolutions are in
\n full force and effect on the date hereof in the form adopted.<\/p>\n
(vii) Incumbency. Attached hereto as “Exhibit C” is an incumbency
\n ———- ———
\n certificate of the officers of the Company, which individuals are duly
\n elected, qualified and acting officers of the Company, each such individual
\n holding the office(s) set forth opposite his or her respective name as of
\n the date hereof, and the signature set forth beside the respective name as
\n of the date hereof, and the signature set forth beside the respective name
\n and title of said officers and authorized signatories are true, authentic
\n signatures.<\/p>\n
(viii) Good Standing. Attached hereto as “Exhibit D” are original
\n ————- ———
\n certificates dated as of a recent date from the Secretary of State or other
\n appropriate authority of each jurisdiction in which the Company was,
\n respectively, incorporated or qualified to do business, such certificate
\n evidencing the good standing of the Company in such jurisdictions.<\/p>\n
Dated:_________________________ [NAME OF DEVELOPER]<\/p>\n
By:____________________________
\n Its:______________________<\/p>\n
2<\/p>\n
EXHIBIT 1.1(a)(42): FORM OF CONVEYANCE AGREEMENT
\n ————————————————<\/p>\n
CONVEYANCE AGREEMENT<\/p>\n
BY AND AMONG<\/p>\n
THE CITY OF DETROIT,<\/p>\n
THE ECONOMIC DEVELOPMENT CORPORATION OF THE CITY OF DETROIT<\/p>\n
and<\/p>\n
(________________________)<\/p>\n
THIS CONVEYANCE AGREEMENT (this “Agreement”), entered into this ______ day
\nof _______________, 1998, by and among the City of Detroit, a Michigan municipal
\ncorporation (“City”), The Economic Development Corporation of the City of
\nDetroit, a Michigan public body corporate (“EDC”) , whose address is 211 West
\nFort, Suite 900, Detroit, Michigan 48226 and _________________________________
\n(“Developer”) whose address is _______________________________________________.<\/p>\n
WITNESSETH:<\/p>\n
WHEREAS, Developer has agreed to purchase and develop the land described in
\nExhibit “A” attached hereto and made a part hereof, together with any
\n———–
\nimprovements thereon (the “Property”) in accordance with the terms, covenants
\nand conditions of that certain Development Agreement dated _______________, 1998
\n(the “Development Agreement”), by and among City, EDC and Developer; and<\/p>\n
WHEREAS, the Development Agreement requires Developer to purchase the
\nProperty pursuant to the terms, covenants and conditions of this Agreement.<\/p>\n
NOW, THEREFORE, in consideration of the premises and the mutual obligations
\nof the parties hereto, each of them does hereby covenant and agree with the
\nothers, as follows:<\/p>\n
1. DEFINITIONS
\n ———–<\/p>\n
1.01 Each capitalized term used in this Agreement shall have the meaning
\nascribed to it in the Development Agreement, unless otherwise expressly defined
\nherein.<\/p>\n
2. PURCHASE AND SALE OF PROPERTY
\n —————————–<\/p>\n
2.01 Purchase and Sale of Property. The City hereby agrees to acquire the
\n —————————–
\nProperty pursuant to the Development Agreement and the Resolution of Necessity
\nand to convey the Property to EDC. EDC agrees to sell the Property, as and when
\nacquired from City, to Developer and Developer hereby agrees to purchase the
\nProperty from Seller on the terms, conditions and <\/p>\n
covenants contained herein. Developer agrees to develop the Property in
\naccordance with the terms, conditions and covenants of the Development
\nAgreement.<\/p>\n
2.02 Conveyance. EDC shall sell, transfer and convey the Property to
\n ———-
\nDeveloper either at a single closing or, at the option of Developer, in a series
\nof closings (a “Closing”) at which EDC shall convey any portion of the Property
\nwhich has been acquired by City and\/or EDC that Developer shall from time to
\ntime designate (the “Designated Parcel”). The Closings shall take place in the
\nmanner set forth in Article IV below.<\/p>\n
2.03 Payment of Purchase Price. The purchase price for all of the Property
\n ————————-
\nshall be an amount equal to Developer’s Pro Rata Share of Feehold Compensation
\nless its Pro Rata Share of the City Contribution (the “Purchase Price”). In the
\nevent Developer elects to acquire the Property on a parcel by parcel basis,
\nDeveloper shall pay at each Closing an amount equal to that portion of the
\nPurchase Price allocable to the Designated Parcel. Since the Property has been
\nor will be acquired by City through one or more acquisition activities,
\nincluding exercise of the power of eminent domain, the total amount of Feehold
\nCompensation or that portion attributable to the Designated Parcel, as the case
\nmay be, may not be known at the time of the Closing, in which event the amount
\nto be paid at the Closing shall be the portion of the Estimated Compensation
\nwhich is fairly attributable (based on the appraisal for the Designated Parcel
\nobtained by City in connection with the Resolution of Necessity) to the
\nDesignated Parcel, subject to adjustment after the Closing as provided in
\nSection 2.9 of the Development Agreement; provided, however the amount to be
\npaid at Closing for the remainder of the Property shall be the difference
\nbetween the aggregate amount paid at prior Closings and the Developer’s Pro Rata
\nShare of the total Estimated Compensation. The obligation of Developer or EDC,
\nas the case maybe, to make payments in the form of post-Closing adjustments as
\nprovided in Section 2.9 of the Development Agreement shall survive termination
\nof this Agreement and shall continue in effect unless and until Developer
\nreconveys the acquired Designated Parcel or Parcels to EDC.<\/p>\n
3. CONDITION OF TITLE
\n ——————<\/p>\n
3.01 Evidence of Title. As soon as possible after the Effective Date, EDC
\n —————–
\nshall deliver to Developer a commitment for an owner’s title insurance policy
\nfor the Property (the “Commitment”) issued by a responsible title insurance
\ncompany selected by EDC, licensed to do business in the State of Michigan, and
\nreasonably acceptable to Developer (the “Title Company”) together with an ALTA
\nsurvey (the “Survey”) of the Property prepared by a licensed surveyor reasonably
\nacceptable to Developer. The Commitment shall set forth the state of title to
\nthe Property together with all exceptions, conditions, reservations, and
\nencumbrances. If Developer is dissatisfied with any matter shown on the Survey
\nor the Commitment, EDC and Developer shall work together to remedy any
\ndeficiency disclosed by the Survey or the Commitment. At Closing, Developer
\nshall pay and be responsible for all premiums for the cost of the Survey and for
\nall policies issued pursuant to the Commitment and any endorsements thereto.<\/p>\n
2<\/p>\n
3.02 Conveyance. At Closing, EDC will deliver to Developer a quit claim
\n ———-
\ndeed in substantially the form as attached hereto as Exhibit “B” (the “Deed”)
\n ———–
\nconveying title to the Property subject only to such matters as may be
\nacceptable to Developer in its reasonable discretion.<\/p>\n
3.03 Surveying and Testing. EDC shall permit Developer and its Associates
\n ———————
\nto enter the Property for purposes of site investigation and testing, in the
\nmanner and subject to the limitations set forth in Section 5.1 of the
\nDevelopment Agreement. Developer shall have a period of time commencing on the
\ndate EDC grants a right of entry to the entire Property and expiring one hundred
\n(100) days thereafter, or whatever longer period of time may be required to
\nsatisfy the requirements of the Michigan Department of Environmental Quality for
\nissuance of an Administrative Order By Consent And Covenant Not To Sue in favor
\nof City, EDC, Developer and the Other Land-Based Casino Developers (the “Due
\nDiligence Period”) in order to satisfy itself as to the condition of the
\nProperty. Developer shall submit to EDC a copy of each survey or report
\ngenerated as a result of such activities.<\/p>\n
3.04 Developer’s Right to Terminate. If Developer’s review of the
\n ——————————
\nCommitment or inspection of the Property during the Due Diligence Period reveals
\na defect in title or a physical or geotechnical condition which renders it
\ncommercially impracticable for Developer to construct and operate the Casino
\nComplex in accordance with the Development Agreement, then Developer may, at its
\noption, upon giving EDC written notice thereof, together with an opinion of
\ncounsel describing the defect in title or copies of the tests disclosing said
\ncondition, at any time on or before the expiration of the Due Diligence Period,
\nelect to terminate this Agreement. If Developer should terminate this Agreement
\nfor any reason, Developer shall immediately surrender and furnish to City and
\nEDC copies of any and all surveys, reports and studies which have been prepared
\nby Developer or any of its consultants with respect to the Property. Subject to
\nthe foregoing right of termination and to Section 18.1(b) of the Development
\nAgreement, Developer agrees to accept the Property in an “as is”, “where is”
\ncondition and Developer waives any and all rights and remedies it might have
\nagainst City and EDC as a result of the condition thereof.<\/p>\n
4. REPRESENTATION AND WARRANTIES
\n —————————–<\/p>\n
4.01 Time and Place of Closing. Developer will notify EDC of the
\n ————————-
\nprospective date for any Closing not less than ten (10) calendar days prior
\nthereto, unless otherwise agreed between the parties, provided that the Closing
\non all Parcels shall occur no later than ten (10) calendar days after the
\nconditions precedent set forth in Section 2.4(a) of the Development Agreement
\n ————–
\nhave been satisfied or waived. Each Closing shall take place at the office of
\nthe Title Company, or other location in downtown Detroit designated by EDC.<\/p>\n
4.02 Conditions to EDC’s Performance. The obligation of EDC to convey the
\n ——————————-
\nProperty shall be subject to the following conditions precedent:<\/p>\n
a. Payment of Purchase Price and Closing Costs. At each Closing, Developer
\n ——————————————-
\n shall have tendered payment of the amount specified in Section 2.03 to be
\n paid at Closing in respect of the Designated Parcel.<\/p>\n
3<\/p>\n
b. No Default. There shall be no existing Event of Default by Developer under
\n ———-
\n this Agreement.<\/p>\n
4.03 Conditions to Developer’s Performance. The obligation of Developer to
\n ————————————-
\npurchase the Property shall be subject to the following conditions precedent:<\/p>\n
a. Satisfaction of Certain Development Agreement Conditions. The conditions
\n ——————————————————–
\n precedent set forth in Sections 2.4(a)(6), (8) and (9) of the Development
\n ——————————-
\n Agreement have been satisfied or waived.<\/p>\n
b. Developer Approval of City Financing Arrangement. All of the conditions set
\n ————————————————
\n forth in Section 2.5(a) of the Development Agreement have been satisfied or
\n waived in accordance with the provisions thereof.<\/p>\n
c. Condition of Title. The Title Company shall have marked-up (or reissued)
\n ——————
\n the Commitment as of the date of the Closing to indicate that all
\n conditions of issuance of the policy and endorsements provided for in the
\n Commitment have been satisfied and that the Designated Parcel is not
\n subject to any federal or state tax liens or real property taxes or
\n assessments which are due and payable, unpaid water bills or other
\n encumbrances of record.<\/p>\n
4.04 Delivery of Deed and Possession. EDC will deliver the Deed to the
\n ——————————-
\nDesignated Parcel and the possession thereof to Developer at Closing provided
\nthat Developer has complied with all conditions precedent as specified herein.
\nDeveloper shall be responsible for recording the Deed and paying all recording
\ncosts including county and state transfer taxes, if any.<\/p>\n
4.05 Closing Statement. At each Closing, Developer and EDC shall each
\n —————–
\nexecute and deliver to the other a closing statement setting forth the amount
\npaid at Closing in respect of the Designated Parcel and reflecting all
\nadjustments provided for in this Agreement.<\/p>\n
5. DEFAULTS AND REMEDIES
\n ———————<\/p>\n
5.01 Default by Developer. The occurrence of any one or more of the
\n ——————–
\nfollowing events shall constitute an Event of Default under this Agreement:<\/p>\n
a. If Developer does not pay for and take title to the Property, as required
\n by this Agreement, upon tender of conveyance by EDC.<\/p>\n
b. If any Event of Default occurs under the Development Agreement.<\/p>\n
Upon an Event of Default, EDC shall have the right to exercise any and all
\nremedies available to EDC under the Development Agreement.<\/p>\n
5.02 Default by EDC. In the event EDC does not tender the conveyance of the
\n ————–
\nProperty or any part thereof in the manner provided in this Agreement, and any
\nsuch failure shall not be cured <\/p>\n
4<\/p>\n
within thirty (30) days after written demand by Developer, then, provided
\nDeveloper is not in Default under this Agreement, Developer, as its sole and
\nexclusive remedy, shall be entitled to obtain specific performance of this
\nAgreement and seek actual damages, if any, arising from delay or failure of
\nperformance; provided, however, that if the nature of EDC’s obligation is such
\nthat more than thirty (30) days are reasonably required for performance, then
\nEDC shall not be in default if EDC commences performance within such thirty (30)
\nday period and thereafter diligently pursues such performance to completion.<\/p>\n
6. NOTICES
\n ——-<\/p>\n
6.01 Notices. Any notice, demand or other communication which any party may
\n ——-
\ndesire or may be required to give to any other party shall be given as provided
\nin the Development Agreement.<\/p>\n
6.02 Severability. If any one or more provisions of this Agreement or in
\n ————
\nany instrument or other document delivered pursuant to this Agreement or the
\napplication thereof to any person or circumstance shall to any extent be
\ndeclared or determined to be invalid or unenforceable, the validity, legality
\nand enforceability of the remainder of this Agreement, or the application of
\nsuch provision to persons or circumstances other than those as to which it is
\ninvalid or unenforceable, shall not be affected or impaired thereby, and each
\nprovision of this Agreement shall be valid and enforceable to the fullest extent
\npermitted by law.<\/p>\n
6.03 Complete Agreement This Agreement and the Development Agreement and
\n ——————
\nall the documents and agreements described or referred to herein and therein,
\nincluding the Exhibits hereto and thereto, constitute the full and complete
\nagreement between the parties hereto with respect to the subject matter hereof
\nand thereof, and supersede and control in their entirety over any and all prior
\nagreements, understandings, representations and statements, whether written or
\noral, by each of the parties hereto. The parties hereto acknowledge and agree
\nthat this Agreement shall implement, and is not intended to supersede, the
\nDevelopment Agreement, and therefore the terms of the Development Agreement
\nshall control in the event of any conflict between this Agreement and the
\nDevelopment Agreement.<\/p>\n
6.04 Terminology. Unless the context otherwise expressly requires, the
\n ———–
\nwords “herein”, “hereof”, and “hereunder”, and other words of similar import
\nrefer to this Agreement as a whole and not to any particular Article, Section,
\nor other subdivision. As used herein, the singular includes the plural, the
\nplural the singular, and the use of any gender shall be applicable to all
\ngenders.<\/p>\n
6.05 Covenants and Conditions. All the terms and provisions of this
\n ————————
\nAgreement shall be deemed and construed to be “covenants” and “conditions” as
\nthough the words specifically expressing or imparting covenants and conditions
\nwere used in each separate term and provision.<\/p>\n
6.06 Captions. The headings of the Articles, Sections and other
\n ——–
\nsubdivisions in this Agreement are for convenience of reference only and shall
\nnot be used to construe or interpret the scope or intent of this Agreement or in
\nany way affect the same.<\/p>\n
5<\/p>\n
6.07 Counterparts. This Agreement may be executed in counterparts, each of
\n ————
\nwhich shall be deemed to be an original document and together shall constitute
\none instrument.<\/p>\n
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
\nfirst set forth above.<\/p>\n
WITNESSES: CITY OF DETROIT,
\n a Michigan municipal corporation<\/p>\n
By:
\n————————— ————————————–
\nPrint: Its:
\n ——————————–
\n—————————
\nPrint:<\/p>\n
WITNESSES: ECONOMIC DEVELOPMENT
\n CORPORATION OF THE CITY OF
\n DETROIT, a Michigan public body corporate<\/p>\n
————————— —————————————–
\nPrint: By:
\n ————————————–
\n Its: Authorized Agent
\n—————————
\nPrint:<\/p>\n
WITNESSES: DEVELOPER:<\/p>\n
————————— —————————————–
\nPrint:
\n —————————————–<\/p>\n
————————— By:
\nPrint: ————————————–
\n Its:
\n ——————————–<\/p>\n
6<\/p>\n
STATE OF MICHIGAN )
\n ) ss.
\nCOUNTY OF WAYNE )<\/p>\n
The foregoing instrument was acknowledged before me on _________________,
\n1998, by _________________, the duly authorized agent of the City of Detroit, a
\nMichigan municipal corporation, on behalf of said corporation.<\/p>\n
———————————–
\n Print:
\n —————————–
\n Notary Public, Wayne County,
\n Michigan
\n My commission expires:________<\/p>\n
STATE OF MICHIGAN )
\n ) ss.
\nCOUNTY OF WAYNE )<\/p>\n
The foregoing instrument was acknowledged before me on _________________,
\n1998, by _________________, the duly authorized agent of The Economic
\nDevelopment Corporation of the City of Detroit, a Michigan public body
\ncorporate, on behalf of said corporation.<\/p>\n
———————————–
\n Print:
\n —————————–
\n Notary Public, Wayne County,
\n Michigan
\n My commission expires:________<\/p>\n
7<\/p>\n
STATE OF MICHIGAN )
\n ) ss.
\nCOUNTY OF WAYNE )<\/p>\n
The foregoing instrument was acknowledged before me on ____________1998, by
\n_____________________________________, the _____________ of
\n_____________________ a Michigan _______________, on behalf of said
\n_____________________.<\/p>\n
———————————–
\n Print:
\n —————————–
\n Notary Public, Wayne County,
\n Michigan
\n My commission expires:________<\/p>\n
Drafted by and when recorded return to:<\/p>\n
8<\/p>\n
EXHIBIT A<\/p>\n
LEGAL DESCRIPTION<\/p>\n
[TO BE PROVIDED IN THE MANNER SET FORTH IN SECTION 9.3 OF THE
\n DEVELOPMENT AGREEMENT]<\/p>\n
A-1<\/p>\n
EXHIBIT B<\/p>\n
QUIT CLAIM DEED<\/p>\n
The Economic Development Corporation of the City of Detroit, a Michigan
\npublic body corporate (the “EDC”), quit claims to ____________________, whose
\npost office address is ____________________ the premises located in the City of
\nDetroit, County of Wayne, and State of Michigan, described on Exhibit A attached
\nhereto and made a part hereof, together with any and all tenements,
\nhereditaments and appurtenances thereunto belonging or in anywise appertaining,
\nfor the sum of ____________________ ($_____________).<\/p>\n
This Deed is given subject to the terms, covenants and conditions of
\n[Identify Restrictive Covenant Document] which is incorporated herein by
\nreference and recorded on ____________________, ____________________ in the
\nOffice of the Register of Deeds for the County of Wayne in Liber ______________
\non Pages ___________ through ___________ inclusive, none of the terms, covenants
\nand conditions of which shall be deemed merged in this Deed. The covenants
\ntherein recited to be covenants running with the land are hereby declared to be
\ncovenants running with the land enforceable by EDC as therein set forth.<\/p>\n
Dated this _______ day of ____________________, 19__.<\/p>\n
IN WITNESS WHEREOF, the Economic Development Corporation of the City of
\nDetroit has caused this instrument to be executed by its duly authorized officer
\nand sealed with its corporate seal, the day and year first above written.<\/p>\n
WITNESSES: ECONOMIC DEVELOPMENT
\n CORPORATION OF THE CITY OF
\n DETROIT, a Michigan public body corporate<\/p>\n
———————————- —————————————–
\nPrint: By:
\n ————————————–
\n Its: Authorized Agent<\/p>\n
———————————-
\nPrint:<\/p>\n
[If any parcels are unplatted, add the statements required by the
\n Land Division Act.]<\/p>\n
B-1<\/p>\n
STATE OF MICHIGAN )
\n ) ss.
\nCOUNTY OF WAYNE )<\/p>\n
The foregoing instrument was acknowledged before me on _________________,
\n1998, by _____________, the duly authorized agent of The Economic Development
\nCorporation of the City of Detroit, a Michigan public body corporate, on behalf
\nof said corporation.<\/p>\n
———————————–
\n Print:
\n —————————–
\n Notary Public, Wayne County,
\n Michigan
\n My commission expires:________<\/p>\n
This instrument was drafted by and after recording return to:<\/p>\n
B-2<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
GUARANTY AND KEEP WELL AGREEMENT
\n ——————————–<\/p>\n
This GUARANTY AND KEEP WELL AGREEMENT (“Guaranty”) is made as of this _____
\nday of __________, 1998, by ______________________, a _____________
\n(“Guarantor”), having its office at ____________________, to and for the benefit
\nof the Economic Development Corporation of the City of Detroit, a Michigan
\npublic body corporate (“EDC”), having an office at 211 West Fort, Suite 900,
\nDetroit, Michigan 48226.<\/p>\n
W I T N E S S E T H
\n ——————-<\/p>\n
WHEREAS, _____________, a _____________ (“Developer”), the City of Detroit,
\na municipal corporation (“City”) and EDC have executed that certain Development
\nAgreement dated of even date herewith (“Development Agreement,” with capitalized
\nterms herein having the same meaning as therein defined, unless expressly
\notherwise defined herein), which Development Agreement sets forth the terms and
\nconditions upon which Developer has agreed to undertake and complete
\nconstruction of the Casino Complex; and<\/p>\n
WHEREAS, Guarantor being the ________________ of Developer, will directly
\nand indirectly benefit from the financial success of Developer; and<\/p>\n
WHEREAS, EDC has declined to enter into the Development Agreement unless
\nthis Guaranty is executed by Guarantor and delivered to EDC.<\/p>\n
NOW, THEREFORE, in consideration of the foregoing premises and in order to
\ninduce EDC to execute and deliver the Development Agreement, Guarantor,
\nacknowledging that but for the execution and delivery of this Guaranty EDC would
\nnot have consented to the Closing of the Development Agreement with Developer,
\nhereby covenants and agrees as follows:<\/p>\n
1. Guarantor hereby absolutely, unconditionally and irrevocably guarantees
\nto EDC the following (collectively, the “Obligations”): (i) the full and
\nfaithful performance of each and every one of the covenants and obligations in
\nthe Development Agreement on Developer’s part to be kept and performed with
\nrespect to the construction, equipping and completion of the Casino Complex on
\nor before the Agreed Upon Opening Date in accordance with the terms, covenants
\nand conditions of the Development Agreement (including, without limitation, the
\npayment of socalled “hard costs” of construction and socalled “soft costs” of
\nconstruction such as fees and charges of architects, engineers, consultants,
\nsurveyors, attorneys and others and the costs of all Permits, licenses and other
\nmatters); (ii) Developer’s prompt payment as and when due of all amounts of
\nevery kind or nature whatsoever, including without limitation, Feehold
\nCompensation, Developer’s Allocable Share of Development Process Costs,<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
Developer’s portion of all Infrastructure Improvements to be paid by Developer
\nto EDC and\/or City under the Development Agreement; and (iii) with respect to
\nany mechanic’s or materialman’s lien filed against or attaching to all or any
\npart of the Project Premises as a result of the Work, the removal or release of
\nsuch lien, provided that nothing herein shall preclude Developer or Guarantor
\nfrom contesting in good faith any such lien by appropriate proceedings.
\nNotwithstanding the foregoing, Guarantor shall have no obligation to obtain the
\nCertificate of Suitability and\/or Casino License for or on behalf of Developer.<\/p>\n
2. During the twenty-four (24) months following the Completion Date
\n(the “Keep Well Period”), Guarantor agrees to fund to Developer all amounts
\nnecessary to allow Developer to operate the Casino Complex and keep the Casino
\nComplex open for business in the ordinary course during the Keep Well Period
\n(the “Keep Well Obligation”), but only to the extent that Developer’s cash flow
\nfrom operations which is used to operate the Casino Complex and keep the Casino
\nComplex open for business in the ordinary course during the Keep Well Period is
\ninsufficient to accomplish such purpose.<\/p>\n
3. Guarantor will maintain continuously in full force and effect and
\navailable to it resources, including unused lines of credit in its favor, in an
\namount reasonably sufficient to fund all amounts necessary to allow Guarantor to
\nperform all of its obligations hereunder, including, without limitation, the
\nKeep Well Obligation.<\/p>\n
4. Upon notice to Guarantor from EDC that Developer has failed to
\nperform any of the Obligations, Guarantor agrees to:<\/p>\n
(a) assume full responsibility for, and to cause the Casino Complex
\n to be constructed, equipped and Completed on or before the Agreed Upon
\n Opening Date in accordance with terms, covenants and conditions of the
\n Development Agreement;<\/p>\n
(b) remove any mechanic’s or materialman’s lien filed with respect to
\n the Development by reason of construction of the Casino Complex, provided
\n that nothing herein shall preclude Developer or Guarantor from contesting
\n in good faith any such lien by appropriate proceedings.<\/p>\n
(c) perform and pay each and every one of the Obligations on demand
\n of EDC;<\/p>\n
(d) indemnify and hold EDC harmless from and against any and all
\n loss, cost, damage, injury, liability, claim or expense EDC may suffer or
\n incur by reason of any nonpayment or nonperformance of any of the
\n Obligations; and<\/p>\n
(e) fully reimburse and repay EDC promptly on demand for all outlays
\n and expenses including interest thereon at the Default Rate, that EDC may
\n make or incur by <\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
reason of any nonpayment or nonperformance of any Obligations, including,
\n without limitation, all outlays and expenses that EDC may make or incur if
\n EDC, in its sole discretion, elects to complete the Casino Complex with
\n such changes or modifications to such of the Design Documents as the EDC
\n deems necessary or appropriate, provided that no such changes or
\n modifications shall constitute a Material Alteration or Material Deviation.<\/p>\n
5. Upon any Event of Default hereunder, EDC shall have the following
\nrights and remedies:<\/p>\n
(a) If EDC in its sole discretion chooses to do so, it may perform
\n any or all of Guarantor’s obligations to be performed hereunder on
\n Guarantor’s behalf. In such event, Guarantor shall reimburse EDC within ten
\n (10) days of demand for all costs and expenses, including reasonable
\n attorneys’ fees, that EDC may incur in performing those obligations,
\n together with interest thereon at the Default Rate from the dates they are
\n incurred until paid.<\/p>\n
(b) In addition, EDC may bring any action at law or in equity or
\n both, to compel Guarantor to perform its obligations hereunder and to
\n collect compensation for all loss, cost, damage, injury and expense which
\n may be sustained or incurred by EDC as a direct or indirect consequence of
\n Guarantor’s failure to perform those obligations, including interest
\n thereon at the Default Rate.<\/p>\n
6. Guarantor authorizes EDC to perform any and all of the following
\nacts at any time in its sole discretion, all without notice to Guarantor and
\nwithout affecting Guarantor’s obligations under this Guaranty:<\/p>\n
(a) With the consent of Developer, EDC may alter any terms of the
\n Development Agreement, including renewing, compromising, extending or
\n accelerating, or otherwise changing the time for performance thereunder.<\/p>\n
(b) With the consent of Developer, EDC may alter, amend or modify all
\n or any part of the Design Documents.<\/p>\n
(c) EDC may take and hold security for the Obligations, accept
\n additional or substituted security therefor, and subordinate, exchange,
\n enforce, waive, release, compromise, fail to perfect and sell or otherwise
\n dispose of any such security.<\/p>\n
(d) EDC may direct the order and manner of any sale of all or any
\n part of any security now or later to be held for the Obligations and may
\n also bid at any such sale.<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
(e) EDC may apply any payments or recoveries from Developer,
\n Guarantor or any other source, and any proceeds of any security, to
\n Developer’s Obligations in such manner, order and priority as it may elect,
\n whether or not those obligations are guaranteed by this Guaranty or secured
\n at the time of the application.<\/p>\n
(f) EDC may release Developer of all or any portion of its liability
\n under the Obligations and the Development Agreement.<\/p>\n
(g) EDC may substitute, add or release any one or more guarantors.<\/p>\n
(h) EDC may consent to any assignment or successive assignments of
\n the Development Agreement by Developer.<\/p>\n
7. Guarantor expressly agrees that until the Obligations are fully
\nsatisfied and each and every term, covenant and condition of this Guaranty is
\nfully performed, including, without limitation, the Keep Well Obligation,
\nGuarantor shall not be released by or because of:<\/p>\n
(a) Any act or event which might otherwise discharge, reduce, limit
\n or modify Guarantor’s obligations under this Guaranty;<\/p>\n
(b) Any waiver, extension, modification, forbearance, delay or other
\n act or omission of EDC, or any failure to proceed promptly or otherwise as
\n against Guarantor or any collateral, if any;<\/p>\n
(c) Any action, omission or circumstance which might increase the
\n likelihood that Guarantor may be called upon to perform under this Guaranty
\n or which might affect the rights or remedies of Guarantor as against
\n Developer; or<\/p>\n
(d) Any dealings occurring at any time between Developer or EDC,
\n whether relating to the Development Agreement or otherwise.<\/p>\n
Guarantor hereby expressly waives and surrenders any defense to its liability
\nunder this Guaranty based upon any of the foregoing acts, omissions, agreements,
\nwaivers or matters. It is the purpose and intent of this Guaranty that the
\nobligations of Guarantor under it shall be absolute and unconditional under any
\nand all circumstances.<\/p>\n
8. Guarantor waives:<\/p>\n
(a) All statutes of limitations as a defense to any action or
\n proceeding brought against Guarantor by EDC to the fullest extent permitted
\n by law;<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
(b) Any right it may have to require EDC to proceed against
\n Developer, proceed against or exhaust any security held from Developer, or
\n pursue any other remedy in its power to pursue;<\/p>\n
(c) Any defense based on any claim that Guarantor’s obligations
\n exceed or are more burdensome than those of Developer;<\/p>\n
(d) Any defense based on: (i) any legal disability of Developer, (ii)
\n any release, discharge, modification, impairment or limitation of the
\n liability of Developer under the Development Agreement from any cause
\n (other than the performance of the Obligations by Developer), whether
\n consented to by EDC or arising by operation of law or from any bankruptcy
\n or other voluntary or involuntary proceeding, in or out of court, for the
\n adjustment of debtor-creditor relationships (“Insolvency Proceeding”),
\n (iii) any rejection or disaffirmance of the Development Agreement in any
\n such Insolvency Proceeding;<\/p>\n
(e) Any defense based on any action taken or omitted by EDC in any
\n Insolvency Proceeding involving Developer, including any election to have a
\n claim allowed as being secured, partially secured or unsecured, any
\n extension of credit by EDC to Developer in any Insolvency Proceeding, and
\n the taking and holding by EDC of any security for any such extension of
\n credit; and<\/p>\n
(f) All presentations, demands for performance, notices of
\n nonperformance, protests, notices of protest, notices of dishonor, notices
\n of acceptance of this Guaranty and of the existence, creation, payment or
\n nonpayment of the Obligations and demands and notices of every kind and
\n nature.<\/p>\n
9. EDC shall not be required, as a condition precedent to making a
\ndemand upon Guarantor or to bringing an action against Guarantor upon this
\nGuaranty, to make demand upon, or to institute any action or proceeding at law
\nor in equity against, Developer, any other guarantor or anyone else, or exhaust
\nits remedies against Developer, any other guarantor or any one else, or against
\nany collateral, if any, given to secure the Obligations. All remedies afforded
\nto EDC by reason of this Guaranty are separate and cumulative remedies and it is
\nagreed that no one of such remedies, whether exercised by EDC or not, shall be
\ndeemed to be exclusive of any of the other remedies available to EDC and shall
\nnot limit or prejudice any other legal or equitable remedy which EDC may have.<\/p>\n
10. Until the termination of this Guaranty in accordance with its
\nterms, Guarantor hereby waives all rights of subrogation, contribution and
\nindemnity against Developer, now or hereafter arising, whether arising
\nhereunder, by operation of law or contract or otherwise, as well as the benefit
\nof any collateral which may from time to time secure the Obligations, and <\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
to that end, Guarantor further agrees not to seek any reimbursement,
\nrestitution, or collection from, or enforce any right or remedy of whatsoever
\nkind or nature in favor of Guarantor against, Developer or any other person or
\nany of their respective assets or properties for or with respect to any payments
\nmade by Guarantor to EDC hereunder or in respect of the Obligations or the Keep
\nWell Obligation. EDC may, in the course of exercising any remedies available to
\nit under the Development Agreement, at its sole option elect which remedies it
\nmay wish to pursue without affecting any of its rights hereunder. EDC may elect
\nto forfeit any of its rights, even if such actions shall result in a full or
\npartial loss of rights of subrogation which Guarantor, but for EDC’s actions,
\nmight have had.<\/p>\n
11. If, at any time, all or any part of any payment previously
\napplied by EDC to any of the Obligations is rescinded or must otherwise be
\nrestored or returned by EDC for any reason, including, without limitation, the
\ninsolvency, bankruptcy, dissolution, liquidation or reorganization of Developer,
\nor upon or as a result of the appointment of a receiver, intervenor, custodian
\nor conservator of, or trustee or similar officer for, Developer or any
\nsubstantial part of its property, Guarantor shall remain liable for the full
\namount so rescinded or returned as though such payments had never been received
\nby EDC, notwithstanding any termination of this Guaranty or the cancellation of
\nthe Development Agreement evidencing the Obligations of Developer.<\/p>\n
12. Before signing this Guaranty, Guarantor investigated the
\nfinancial condition and business operations of Developer, the present and former
\ncondition, uses and ownership of the Project Premises, and such other matters as
\nGuarantor deemed appropriate to assure itself of Developer’s ability to
\ndischarge its obligations under the Development Agreement. Guarantor assumes
\nfull responsibility for that due diligence, as well as for keeping informed of
\nall matters which may affect Developer’s ability to pay and perform the
\nObligations. EDC has no duty to disclose to Guarantor any information which it
\nmay have or receive about Developer’s financial condition or business
\noperations, the condition or uses of the Project Premises, or any other
\ncircumstances bearing on Developer’s ability to perform under the Development
\nAgreement.<\/p>\n
13. Except for Permitted Affiliate Payments, any rights of Guarantor,
\nwhether now existing or hereafter arising, to receive payment on account of any
\nindebtedness (including interest) owed to it by Developer, or to withdraw
\ncapital invested by it in Developer, or to receive distributions from Developer,
\nshall, to the extent and in the manner provided herein, be subordinate as to
\ntime of payment and in all other respects to the full and prior payment and
\nperformance of Developer’s Obligations to EDC (to the extent then due).
\nFollowing and during the continuance of an Event of Default, Guarantor shall not
\nbe entitled to enforce or receive payment of any sums or distributions from
\nDeveloper other than Permitted Affiliate Payments, until the Obligations have
\nbeen paid and performed in full (to the extent then due) and any such sums
\nreceived in violation of this Guaranty shall be received by Guarantor in trust
\nfor EDC.<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
14. Guarantor hereby represents and warrants that:<\/p>\n
(a) it is duly organized, validly existing and in good standing under
\n the applicable laws of the jurisdiction of its formation, with full power
\n and authority to execute and deliver this Guaranty and consummate the
\n transactions contemplated hereby;<\/p>\n
(b) the execution and delivery of this Guaranty and the consummation
\n and performance by it of the transactions contemplated hereby: (1) have
\n been duly authorized by all actions required under the terms and provisions
\n of the instruments governing its existence (“Governing Instruments”), the
\n ———————
\n laws of the jurisdiction of its formation and the laws of the State; (2)
\n create legal, valid and binding obligations of it enforceable in accordance
\n with the terms hereof; (3) subject to applicable law do not require the
\n approval or consent of any Governmental Authority having jurisdiction over
\n it, except those already obtained; and (4) do not and will not constitute a
\n violation of, or default under, its Governing Instruments, any Government
\n Requirements, agreement, commitment or instrument to which it is a party or
\n by which any of its assets are bound;<\/p>\n
(c) subject to applicable gaming laws, neither it nor any of its
\n property has any immunity from any legal process (whether through service
\n or notice, attachment prior to judgment, attachment in aid of execution,
\n execution or otherwise) or the jurisdiction of any court of the United
\n States sitting in the State or any court of the State;<\/p>\n
(d) the financial statements of Guarantor dated _______________, 199_
\n (the “Financial Statements”) heretofore delivered to EDC by Guarantor, are
\n ——————–
\n true and correct in all material respects as of the date thereof, have been
\n prepared on the accounting basis adopted by Guarantor for federal income
\n tax purposes consistently applied (except insofar as any change in the
\n application thereof is disclosed in such Financial Statements), and fairly
\n present the financial condition of Guarantor as of the date thereof, and no
\n materially adverse change has occurred in the financial condition reflected
\n in such Financial Statements since the date thereof and no material
\n additional borrowings have been made or guaranteed by Guarantor since the
\n date thereof, in either case, which individually or in the aggregate
\n materially adversely affects the ability of Guarantor to pay and perform
\n its obligations hereunder;<\/p>\n
(e) none of the Financial Statements or any certificate or statement
\n furnished to EDC by or on behalf of Guarantor in connection herewith, and
\n none of the representations and warranties in this Guaranty, contains any
\n untrue statement as of its date of a material fact or omits to state a
\n material fact necessary in order to make the statements contained therein
\n or herein not misleading;<\/p>\n
(f) other than as disclosed in Guarantor’s Form 10Ks and 10Qs filed
\n pursuant <\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
to the Securities and Exchange Act of 1934, there are no actions, suits or
\n proceedings pending, or, to the knowledge of Guarantor, threatened against
\n or affecting Guarantor, or to Guarantor’s knowledge which involve or to
\n Guarantor’s knowledge may individually or in the aggregate materially
\n adversely affect the ability of Guarantor to perform any of its obligations
\n under this Guaranty, and Guarantor is not in default with respect to any
\n order, writ, injunction, decree or demand of any court, arbitration body or
\n Governmental Authority, which default materially adversely affects the
\n ability of Guarantor to pay and perform its obligations hereunder; and<\/p>\n
(g) all permits, consents, approvals, orders and authorizations of,
\n and all registrations, declarations and filings with, all Governmental
\n Authorities (collectively, the “Consents”), if any, that are required in
\n ——–
\n connection with the valid execution and delivery by Guarantor of this
\n Guaranty have been obtained and Guarantor agrees that all Consents, if any,
\n required in connection with the carrying out or performance of any of the
\n transactions required or contemplated thereby (including, but not limited
\n to, all authorizations, approvals, permits and consents) will be obtained
\n when required in order to satisfy the obligations hereunder in accordance
\n with the terms of this Guaranty.<\/p>\n
15. Guarantor covenants with EDC as follows:<\/p>\n
(a) Guarantor will furnish to EDC the following:<\/p>\n
(i) No later than sixty (60) days after the end of each fiscal
\n quarter of Guarantor an unaudited balance sheet and income statement,
\n certified as true and correct by the chief financial officer of
\n Guarantor or by any other duly authorized representative of Guarantor
\n reasonably acceptable to EDC, which shall be prepared on the
\n accounting basis adopted by Guarantor for federal income tax purposes
\n consistently applied (except insofar as any change in the application
\n thereof is disclosed in such financial statements).<\/p>\n
(ii) No later than one hundred twenty (120) days after the end of
\n each fiscal year of Guarantor an audited balance sheet and income
\n statement prepared in accordance with GAAP.<\/p>\n
None of the aforesaid financial statements or any certificate or statement
\n furnished to EDC by or on behalf of Guarantor in connection with the
\n transactions contemplated hereby, and none of the representations and
\n warranties in this Guaranty, shall contain any untrue statement of a
\n material fact or omit to state a material fact necessary in order to make
\n the statements contained therein or herein not misleading.<\/p>\n
(b) Guarantor shall give notice to EDC promptly upon the occurrence
\n of:<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
(i) any known default or Event of Default; and<\/p>\n
(ii) any (A) material default or event of default by Guarantor
\n under any contractual obligation of Guarantor or (B) litigation,
\n investigation or proceeding which may exist at any time between
\n Guarantor or any Person or Governmental Authority which could have a
\n material adverse effect on the ability of Guarantor to pay its
\n obligations hereunder.<\/p>\n
Each notice pursuant to this paragraph shall be accompanied by a statement
\n setting forth details of the occurrence referred to therein and stating
\n what action Guarantor proposes to take with respect thereto.<\/p>\n
(c) Guarantor agrees, upon the reasonable request of EDC, to do any
\n act or execute any additional documents as may be reasonably required by
\n EDC to accomplish or further confirm the provisions of this Guaranty.<\/p>\n
16. EDC may declare Guarantor to be in default under this Guaranty
\nupon the occurrence of any of the following events (“Events of Default”).<\/p>\n
(a) If Guarantor fails to pay any amounts required to be paid or
\n expended under this Guaranty and such nonpayment continues for ten (10)
\n Business Days after written notice from EDC;<\/p>\n
(b) If Guarantor fails to comply with any covenants and agreements
\n made by it in this Guaranty (other than those specifically described in any
\n other subparagraph of this paragraph 16) and such noncompliance continues
\n for fifteen (15) days after written notice from EDC, provided, however,
\n that if any such noncompliance is reasonably susceptible of being cured
\n within thirty (30) days, but cannot with due diligence be cured within
\n fifteen (15) days, and if Guarantor commences to cure any noncompliance
\n within said fifteen (15) days and diligently prosecutes the cure to
\n completion, then Guarantor shall not during such period of diligently
\n curing be in default hereunder as long as such default is completely cured
\n within thirty (30) days of the first notice of such default to Guarantor;<\/p>\n
(c) If any representation or warranty made by Guarantor hereunder was
\n false or misleading in any material respect as of the time made;<\/p>\n
(d) If any of the following events occur with respect to Guarantor:
\n (i) by order of a court of competent jurisdiction, a receiver, liquidator
\n or trustee of Guarantor or of any of the property of Guarantor (other than
\n non-material property and with respect to which the appointment hereinafter
\n referred to would not materially adversely affect the <\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
financial condition of Guarantor) shall be appointed and shall not have
\n been discharged within ninety (90) days; (ii) a petition in bankruptcy,
\n insolvency proceeding or petition for reorganization shall have been filed
\n against Guarantor and same is not withdrawn, dismissed, canceled or
\n terminated within ninety (90) days; (iii) Guarantor is adjudicated bankrupt
\n or insolvent or a petition for reorganization is granted (without regard
\n for any grace period provided for herein); (iv) if there is an attachment
\n or sequestration of any of the property of Guarantor and same is not
\n discharged or bonded over within ninety (90) days; (v) if Guarantor files
\n or consents to the filing of any petition in bankruptcy or commences or
\n consents to the commencement of any proceeding under the Federal Bankruptcy
\n Code or any other law, now or hereafter in effect, relating to the
\n reorganization of Guarantor or the arrangement or readjustment of the debts
\n of Guarantor; or (vi) if Guarantor shall make an assignment for the benefit
\n of its creditors or shall admit in writing its inability to pay its debts
\n generally as they become due or shall consent to the appointment of a
\n receiver, trustee or liquidator of Guarantor or of all or any material part
\n of its property;<\/p>\n
(e) If Guarantor ceases to do business or terminates its business for
\n any reason whatsoever or shall cause or institute any proceeding for the
\n dissolution of Guarantor;<\/p>\n
(f) Except on satisfaction of the Obligations and expiration of the
\n Keep Well Obligation, if Guarantor attempts to withdraw, revoke or assert
\n that the Guaranty is of no force or effect.<\/p>\n
17. If any of the provisions of this Guaranty, or the application
\nthereof to any Person or circumstances, shall, to any extent, be invalid or
\nunenforceable, the remainder of this Guaranty, or the application of such
\nprovision or provisions to Persons or circumstances other than those as to whom
\nor which it is held invalid or unenforceable, shall not be affected thereby, and
\nevery provision of this Guaranty shall be valid and enforceable to the fullest
\nextent permitted by law.<\/p>\n
18. This writing is intended by the parties as a final expression of
\nthis Guaranty, and is intended to constitute a complete and exclusive statement
\nof the term of the agreement among the parties hereto. There are no promises or
\nconditions, expressed or implied, unless contained in this writing. No course of
\ndealing, course of performance or trade usage, and no parol evidence of any
\nnature, shall be used to supplement or modify the terms of this Guaranty. No
\namendment, modification, termination or waiver of any provision of this
\nGuaranty, shall in any event be effective unless the same shall be in writing
\nand signed by EDC, and then such waiver or consent shall be effective only in
\nthe specific instance and for the specific purpose for which given. No waiver
\nshall be implied from EDC’s delay in exercising or failing to exercise any right
\nor remedy against Developer, Guarantor or any collateral given to secure the
\nObligations.<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
19. Any notice or communication required or permitted hereunder shall
\nbe in writing and shall be deemed properly given if delivered by messenger,
\nFederal Express or other recognized overnight courier, or if sent by United
\nStates mail, postage prepaid, registered or certified mail, addressed as set
\nforth below. All notices shall be deemed to have been given upon delivery, if
\ndelivered by messenger or overnight courier, or five (5) Business Days after the
\ndate of mailing if mailed.<\/p>\n
If to Guarantor:<\/p>\n
_________________________
\n _________________________
\n _________________________
\n _________________________<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
If to EDC:<\/p>\n
_________________________
\n _________________________
\n _________________________
\n _________________________<\/p>\n
or, as to such party or address as shall be specified by like notice.<\/p>\n
20. Time is of the essence in performance of this Guaranty by
\nGuarantor.<\/p>\n
21. Guarantor’s obligations under this Guaranty are in addition to
\nits obligations under any other existing or future guaranties, each of which
\nshall remain in full force and effect until it is expressly modified or released
\nin a writing signed by EDC. Guarantor’s obligations under this Guaranty are
\nindependent of those of Developer under the Development Agreement.<\/p>\n
22. The terms of this Guaranty shall bind and benefit the legal
\nrepresentatives, successors and assigns of EDC and Guarantor; provided, however,
\nthat Guarantor may not assign this Guaranty, or assign or delegate any of its
\nrights or obligations under this Guaranty, without the prior written consent of
\nEDC in each instance.<\/p>\n
23. This Guaranty shall be governed by, and construed in accordance
\nwith, the local laws of the State of Michigan without application of its law of
\nconflicts principles.<\/p>\n
24. If any lawsuit or arbitration is commenced which arises out of,
\nor which relates to this Guaranty or the Development Agreement, the prevailing
\nparty in such lawsuit or arbitration shall be entitled to recover from each
\nother party such sums as the court or arbitrator may adjudge to be reasonable
\nattorneys’ fees (including reasonably allocated costs for services of in-house
\ncounsel) in the action or proceeding in addition to costs and expenses otherwise
\nallowed by law. In any bankruptcy, reorganization, receivership, or other
\nproceedings affecting creditor’s rights involving a claim under this Guaranty,
\nGuarantor agrees to pay all of EDC’s reasonable costs and expenses, including
\nattorneys’ fees (including reasonably allocated costs for services of in-house
\ncounsel) which may be incurred in any effort to collect on or enforce any term
\nof this Guaranty, but only to the extent permitted by the court having
\njurisdiction over such proceedings. From the time(s) incurred until paid in
\nfull, all sums shall bear interest at the Default Rate.<\/p>\n
25. Guarantor acknowledges that it expects to benefit from the
\nextension of the Development Agreement to Developer because of its relationship
\nto Developer, and that it is executing this Guaranty in consideration of that
\nanticipated benefit.<\/p>\n
EXHIBIT 1.1(a)(83): FORM OF GUARANTY
\n AND KEEP WELL AGREEMENT
\n ————————————<\/p>\n
26. The obligations of Guarantor under this Guaranty with respect to
\nthe Obligations set forth in paragraph 1 hereof, shall terminate and be of no
\nfurther force or effect (subject to reinstatement pursuant to paragraph 11
\nhereof) upon the satisfaction of such Obligations set forth in paragraph 1
\nhereof and with respect to the Keep Well Obligation, shall terminate and be of
\nno further force or effect upon the expiration of the Keep Well Period.<\/p>\n
27. EDC shall not issue a written release of Developer, other than as
\nit may be compelled to do so by court order unless it issues a similar release
\nof Guarantor.<\/p>\n
28. EACH PARTY TO THIS GUARANTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO
\nTRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THE
\nDEVELOPMENT AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
\nTHE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH RESPECT TO THIS GUARANTY,
\nTHE DEVELOPMENT AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
\nWHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
\nTORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
\nCLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
\nA JURY, AND THAT ANY PARTY TO THIS GUARANTY MAY FILE AN ORIGINAL COUNTERPART OR
\nA COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
\nSIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.<\/p>\n
IN WITNESS WHEREOF, this Guaranty has been duly executed as of the day
\nand year first above written.<\/p>\n
[SIGNATURE BLOCK]<\/p>\n
EXHIBIT 1.1(a)(113): FORM OF PERFORMANCE
\n GUARANTY
\n —————————————–<\/p>\n
PERFORMANCE GUARANTY
\n ——————–<\/p>\n
This PERFORMANCE GUARANTY (“Guaranty”) is made as of this _____ day of
\n__________, 1998, by ______________________, a _____________ (“Guarantor”),
\nhaving its office at ____________________, to and for the benefit of the
\nEconomic Development Corporation of the City of Detroit, a Michigan public body
\ncorporate (“EDC”), having an office at 211 West Fort, Suite 900, Detroit,
\nMichigan 48226 and the City of Detroit, a municipal corporation (“City”, and
\ntogether with EDC collectively the “Beneficiaries”).<\/p>\n
W I T N E S S E T H
\n ——————-<\/p>\n
WHEREAS, _____________, a _____________ (“Developer”) and Beneficiaries
\nhave executed that certain Development Agreement dated of even date herewith
\n(“Development Agreement,” with capitalized terms herein having the same meaning
\nas therein defined, unless expressly otherwise defined herein), which
\nDevelopment Agreement sets forth the terms and conditions upon which Developer
\nhas agreed to build and operate the Casino Complex; and<\/p>\n
WHEREAS, Guarantor being the ________________ of Developer, will directly
\nand indirectly benefit from the financial success of Developer; and<\/p>\n
WHEREAS, pursuant to Section 3.7 of the Development Agreement, Developer
\n ———–
\nmay deliver this Guaranty to Beneficiaries in consideration of Beneficiaries’s
\nforbearance from exercising certain rights and remedies under the Development
\nAgreement as a result of Developer’s nonperformance of, and noncompliance with,
\ncertain covenants, conditions and provisions as more particularly set forth
\ntherein.<\/p>\n
NOW, THEREFORE, in consideration of the foregoing premises, Guarantor,
\nacknowledging that but for the execution and delivery of this Guaranty,
\nBeneficiaries would be entitled to exercise certain rights and remedies under
\nthe Development Agreement with respect to Developer’s nonperformance of, and
\nnoncompliance with, certain covenants, conditions and provisions therein, and
\nin consideration of Beneficiaries’s forbearance from exercising such rights
\nand remedies and for other good and valuable consideration, the receipt,
\nadequacy and sufficiency of which are hereby acknowledged, hereby covenants and
\nagrees as follows:<\/p>\n
1. Guarantor hereby absolutely, unconditionally and irrevocably guarantees
\nto Beneficiaries the full, complete and punctual payment, observance,
\nperformance and satisfaction of all covenants, terms, conditions, debts,
\nliabilities, obligations, duties and agreements of Developer under the
\nDevelopment Agreement, however created, arising or evidenced, whether direct or<\/p>\n
indirect, absolute or contingent, now or hereafter existing, due or to become
\ndue, known or unknown to Guarantor at the time of the execution of this Guaranty
\n(collectively, the “Obligations”).<\/p>\n
2. The obligations of Guarantor under this Guarantor shall terminate
\nand be of no further force or effect (subject to reinstatement pursuant to
\nparagraph 11 hereof) upon Guarantor’s delivery to Beneficiaries of written
\nnotice of such termination and the concurrent satisfaction of all of the
\nfollowing:<\/p>\n
(a) no Event of Default or event which, with the giving of notice or
\n passage of time or both, could mature into and Event of Default exists
\n hereunder or under the Development Agreement;<\/p>\n
(b) Developer is in compliance with the financial covenants set forth
\n in Section 3.2 of the Development Agreement;
\n ———–<\/p>\n
(c) Developer is in compliance with the Performance Threshold;<\/p>\n
(d) there shall have been deposited in the Sinking Fund account
\n sufficient funds to comply with the Sinking Fund Provisions set forth in
\n Section 3.5 of the Development Agreement;
\n ———–<\/p>\n
(e) there shall have been deposited in the Capital Maintenance Fund
\n sufficient funds to comply with the reserve requirements for capital
\n replacements set forth in Section 7.7 of the Development Agreement;
\n ———–<\/p>\n
(f) to the extent insurance proceeds and any other funds are required
\n to be deposited into a trust account in accordance with Section 16.2 of the
\n ————
\n Development Agreement, the full amount of such deposits have been
\n deposited; and<\/p>\n
(g) To the extent Proceeds and any other funds are required to be
\n deposited into an escrow account in accordance with Section 16.4 of the
\n ————
\n Development Agreement, the full amount of such deposits have been
\n deposited.<\/p>\n
3. Guarantor will maintain continuously in full force and effect and
\navailable to it resources, including unused lines of credit in its favor, in an
\namount reasonably sufficient to fund all amounts necessary to allow Guarantor to
\nperform all of its obligations hereunder.<\/p>\n
4. This is an absolute, irrevocable, present and continuing guaranty
\nof payment and performance and not merely a guaranty of collection. Upon notice
\nto Guarantor from either Beneficiary that Developer has failed to perform any of
\nthe Obligations, Guarantor agrees, on demand by either Beneficiary to:<\/p>\n
2<\/p>\n
(a) perform and pay each and every one of the Obligations in
\n accordance with the terms, covenants and conditions of the Development
\n Agreement;<\/p>\n
(b) indemnify and hold Beneficiaries harmless from and against any and
\n all loss, cost, damage, injury, liability, claim or expense Beneficiaries
\n may suffer or incur by reason of any nonpayment or nonperformance of any of
\n the Obligations; and<\/p>\n
(c) fully reimburse and repay Beneficiaries for all outlays and
\n expenses including interest thereon at the Default Rate, that Beneficiaries
\n may make or incur by reason of any nonpayment or nonperformance of any
\n Obligations, including, without limitation, all outlays and expenses that
\n Beneficiaries may make or incur if Beneficiaries, in their sole discretion,
\n elect to pay or perform any of the Obligations on Developer’s or
\n Guarantor’s behalf.<\/p>\n
5. Upon any Event of Default hereunder, Beneficiaries shall have the
\nfollowing rights and remedies:<\/p>\n
(a) If Beneficiaries in their sole discretion choose to do so, they
\n may perform any or all of Guarantor’s obligations to be performed hereunder
\n on Guarantor’s behalf. In such event, Guarantor shall reimburse
\n Beneficiaries immediately on demand for all costs and expenses, including
\n reasonable attorneys’ fees, that Beneficiaries may incur in performing
\n those obligations, together with interest thereon at the Default Rate from
\n the dates they are incurred until paid.<\/p>\n
(b) In addition, Beneficiaries may bring any action at law or in
\n equity or both, to compel Guarantor to perform its obligations hereunder
\n and to collect compensation for all loss, cost, damage, injury and expense
\n which may be sustained or incurred by Beneficiaries as a direct or indirect
\n consequence of Guarantor’s failure to perform those obligations, including
\n interest thereon at the Default Rate.<\/p>\n
6. Guarantor authorizes any Beneficiary to perform any and all of the
\nfollowing acts at any time in its sole discretion, all without notice to
\nGuarantor and without affecting Guarantor’s obligations under this Guaranty:<\/p>\n
(a) With the consent of Developer, Beneficiaries may alter any terms
\n of the Development Agreement, including renewing, compromising, extending
\n or accelerating, or otherwise changing the time for performance thereunder.<\/p>\n
(b) Beneficiaries may take and hold security for the Obligations,
\n accept additional or substituted security therefor, and subordinate,
\n exchange, enforce, waive, release, compromise, fail to perfect and sell or
\n otherwise dispose of any such security.<\/p>\n
3<\/p>\n
(c) Beneficiaries may direct the order and manner of any sale of all
\n or any part of any security now or later to be held for the Obligations and
\n may also bid at any such sale.<\/p>\n
(d) Beneficiaries may apply any payments or recoveries from Developer,
\n Guarantor or any other source, and any proceeds of any security, to
\n Developer’s Obligations in such manner, order and priority as it may elect,
\n whether or not those obligations are guaranteed by this Guaranty or secured
\n at the time of the application.<\/p>\n
(e) Beneficiaries may release Developer of all or any portion of its
\n liability under the Obligations and the Development Agreement.<\/p>\n
(f) Beneficiaries may substitute, add or release any one or more
\n guarantors.<\/p>\n
(g) Beneficiaries may consent to any assignment or successive
\n assignments of the Development Agreement by Developer.<\/p>\n
7. Guarantor expressly agrees that Guarantor shall not be released by
\nor because of:<\/p>\n
(a) Any act or event which might otherwise discharge, reduce, limit or
\n modify Guarantor’s obligations under this Guaranty;<\/p>\n
(b) Any waiver, extension, modification, forbearance, delay or other
\n act or omission of Beneficiaries, or any failure to proceed promptly or
\n otherwise as against Guarantor or any collateral, if any;<\/p>\n
(c) Any action, omission or circumstance which might increase the
\n likelihood that Guarantor may be called upon to perform under this Guaranty
\n or which might affect the rights or remedies of Guarantor as against
\n Developer; or<\/p>\n
(d) Any dealings occurring at any time between Developer or
\n Beneficiaries, whether relating to the Development Agreement or otherwise.<\/p>\n
Guarantor hereby expressly waives and surrenders any defense to its liability
\nunder this Guaranty based upon any of the foregoing acts, omissions, agreements,
\nwaivers or matters. It is the purpose and intent of this Guaranty that the
\nobligations of Guarantor under it shall be absolute and unconditional under any
\nand all circumstances.<\/p>\n
8. Guarantor waives:<\/p>\n
4<\/p>\n
(a) All statutes of limitations as a defense to any action or
\n proceeding brought against Guarantor by Beneficiaries to the fullest extent
\n permitted by law;<\/p>\n
(b) Any right it may have to require Beneficiaries to proceed against
\n Developer, proceed against or exhaust any security held from Developer, or
\n pursue any other remedy in its power to pursue;<\/p>\n
(c) Any defense based on any claim that Guarantor’s obligations exceed
\n or are more burdensome than those of Developer;<\/p>\n
(d) Any defense based on: (i) any legal disability of Developer, (ii)
\n any release, discharge, modification, impairment or limitation of the
\n liability of Developer under the Development Agreement from any cause
\n (other than the performance of the Obligations by Guarantor), whether
\n consented to by Beneficiaries or arising by operation of law or from any
\n bankruptcy or other voluntary or involuntary proceeding, in or out of
\n court, for the adjustment of debtor-creditor relationships (“Insolvency
\n Proceeding”), (iii) any rejection or disaffirmance of the Development
\n Agreement in any such Insolvency Proceeding;<\/p>\n
(e) Any defense based on any action taken or omitted by Beneficiaries
\n in any Insolvency Proceeding involving Developer, including any election to
\n have a claim allowed as being secured, partially secured or unsecured, any
\n extension of credit by Beneficiaries to Developer in any Insolvency
\n Proceeding, and the taking and holding by Beneficiaries of any security for
\n any such extension of credit; and<\/p>\n
(f) All presentations, demands for performance, notices of
\n nonperformance, protests, notices of protest, notices of dishonor, notices
\n of acceptance of this Guaranty and of the existence, creation, payment or
\n nonpayment of the Obligations and demands and notices of every kind and
\n nature.<\/p>\n
9. Beneficiaries shall not be required, as a condition precedent to
\nmaking a demand upon Guarantor or to bringing an action against Guarantor upon
\nthis Guaranty, to make demand upon, or to institute any action or proceeding at
\nlaw or in equity against, Developer, any other guarantor or anyone else, or
\nexhaust its remedies against Developer, any other guarantor or any one else, or
\nagainst any collateral, if any, given to secure the Obligations. All remedies
\nafforded to Beneficiaries by reason of this Guaranty are separate and cumulative
\nremedies and it is agreed that no one of such remedies, whether exercised by
\nBeneficiaries or not, shall be deemed to be exclusive of any of the other
\nremedies available to Beneficiaries and shall not limit or prejudice any other
\nlegal or equitable remedy which Beneficiaries may have.<\/p>\n
10. Until the obligations of Guarantor shall terminate pursuant to
\nparagraph 2 hereof, Guarantor hereby waives all rights of subrogation,
\ncontribution and indemnity against <\/p>\n
5<\/p>\n
Developer, now or hereafter arising, whether arising hereunder, by operation of
\nlaw or contract or otherwise, as well as the benefit of any collateral which may
\nfrom time to time secure the Obligations, and to that end, Guarantor further
\nagrees not to seek any reimbursement, restitution, or collection from, or
\nenforce any right or remedy of whatsoever kind or nature in favor of Guarantor
\nagainst, Developer or any other person or any of their respective assets or
\nproperties for or with respect to any payments made by Guarantor to EDC
\nhereunder or in respect of the Obligations. EDC may, in the course of exercising
\nany remedies available to it under the Development Agreement, at its sole option
\nelect which remedies it may wish to pursue without affecting any of its rights
\nhereunder. EDC may elect to forfeit any of its rights, even if such actions
\nshall result in a full or partial loss of rights of subrogation which Guarantor,
\nbut for EDC’s actions, might have had.<\/p>\n
11. If, at any time, all or any part of any payment previously applied
\nby Beneficiaries to any of the Obligations is rescinded or must otherwise be
\nrestored or returned by Beneficiaries for any reason, including, without
\nlimitation, the insolvency, bankruptcy, dissolution, liquidation or
\nreorganization of Developer, or upon or as a result of the appointment of a
\nreceiver, intervenor, custodian or conservator of, or trustee or similar officer
\nfor, Developer or any substantial part of its property, Guarantor shall remain
\nliable for the full amount so rescinded or returned as though such payments had
\nnever been received by Beneficiaries, notwithstanding any termination of this
\nGuaranty or the cancellation of the Development Agreement evidencing the
\nObligations of Developer.<\/p>\n
12. Before signing this Guaranty, Guarantor investigated the financial
\ncondition and business operations of Developer, the present and former
\ncondition, uses and ownership of the Project Premises, and such other matters as
\nGuarantor deemed appropriate to assure itself of Developer’s ability to
\ndischarge its obligations under the Development Agreement. Guarantor assumes
\nfull responsibility for that due diligence, as well as for keeping informed of
\nall matters which may affect Developer’s ability to pay and perform the
\nObligations. Beneficiaries have no duty to disclose to Guarantor any information
\nwhich it may have or receive about Developer’s financial condition or business
\noperations, the condition or uses of the Project Premises, or any other
\ncircumstances bearing on Developer’s ability to perform under the Development
\nAgreement.<\/p>\n
13. Except for Permitted Affiliate Payments, any rights of Guarantor,
\nwhether now existing or hereafter arising, to receive payment on account of any
\nindebtedness (including interest) owed to it by Developer, or to withdraw
\ncapital invested by it in Developer, or to receive distributions from Developer,
\nshall, to the extent and in the manner provided herein, be subordinate as to
\ntime of payment and in all other respects to the full and prior payment and
\nperformance of Developer’s Obligations to Beneficiaries to the extent then due.
\nFollowing and during the continuance of an Event of Default, Guarantor shall not
\nbe entitled to enforce or receive payment of any sums or distributions from
\nDeveloper other than Permitted Affiliate Payments until the Obligations have
\nbeen paid and performed in full to the extent then due and any such sums or<\/p>\n
6<\/p>\n
distributions received in violation of this Guaranty shall be received by
\nGuarantor in trust for Beneficiaries.<\/p>\n
14. Guarantor hereby represents and warrants that:<\/p>\n
(a) it is duly organized, validly existing and in good standing under
\n the applicable laws of the jurisdiction of its formation, with full power
\n and authority to execute and deliver this Guaranty and consummate the
\n transactions contemplated hereby;<\/p>\n
(b) the execution and delivery of this Guaranty and the consummation
\n and performance by it of the transactions contemplated hereby: (1) have
\n been duly authorized by all actions required under the terms and provisions
\n of the instruments governing its existence (“Governing Instruments”), the
\n ———————
\n laws of the jurisdiction of its formation and the laws of the State; (2)
\n create legal, valid and binding obligations of it enforceable in accordance
\n with the terms hereof; (3) do not require the approval or consent of any
\n Governmental Authority having jurisdiction over it, except those already
\n obtained; and (4) do not and will not constitute a violation of, or default
\n under, its Governing Instruments, any Government Requirements, agreement,
\n commitment or instrument to which it is a party or by which any of its
\n assets are bound;<\/p>\n
(c) subject to applicable gaming laws, neither it nor any of its
\n property has any immunity from any legal process (whether through service
\n or notice, attachment prior to judgment, attachment in aid of execution,
\n execution or otherwise) or the jurisdiction of any court of the United
\n States sitting in the State or any court of the State;<\/p>\n
(d) the financial statements of Guarantor dated _______________,
\n 19_____ (the “Financial Statements”) heretofore delivered to Beneficiaries
\n ——————–
\n by Guarantor, are true and correct in all material respects as of the date
\n thereof, have been prepared on the accounting basis adopted by Guarantor
\n for federal income tax purposes consistently applied (except insofar as any
\n change in the application thereof is disclosed in such Financial
\n Statements), and fairly present the financial condition of Guarantor as of
\n the date thereof, and no materially adverse change has occurred in the
\n financial condition reflected in such Financial Statements since the date
\n thereof and no material additional borrowings have been made or guaranteed
\n by Guarantor since the date thereof, in either case, which individually or
\n in the aggregate materially adversely affects the ability of Guarantor to
\n pay and perform its obligations hereunder;<\/p>\n
(e) none of the Financial Statements or any certificate or statement
\n furnished to Beneficiaries by or on behalf of Guarantor in connection
\n herewith, and none of the representations and warranties in this Guaranty,
\n contains any untrue statement as of its date<\/p>\n
7<\/p>\n
of a material fact or omits to state a material fact necessary in order to
\n make the statements contained therein or herein not misleading;<\/p>\n
(f) other than as disclosed in Guarantor’s Form 10Ks and 10Qs filed
\n pursuant to the Securities and Exchange Act of 1934, there are no actions,
\n suits or proceedings pending, or, to the knowledge of Guarantor, threatened
\n against or affecting Guarantor, or to Guarantor’s knowledge which involve
\n or to Guarantor’s knowledge may individually or in the aggregate materially
\n adversely affect the ability of Guarantor to perform any of its obligations
\n under this Guaranty, and Guarantor is not in default with respect to any
\n order, writ, injunction, decree or demand of any court, arbitration body or
\n Governmental Authority, which default materially adversely affects the
\n ability of Guarantor to pay and perform its obligations hereunder; and<\/p>\n
(g) all permits, consents, approvals, orders and authorizations of,
\n and all registrations, declarations and filings with, all Governmental
\n Authorities (collectively, the “Consents”), if any, that are required in
\n ——–
\n connection with the valid execution and delivery by Guarantor of this
\n Guaranty have been obtained and Guarantor agrees that all Consents, if any,
\n required in connection with the carrying out or performance of any of the
\n transactions required or contemplated thereby (including, but not limited
\n to, all authorizations, approvals, permits and consents) will be obtained
\n when required in order to satisfy the obligations hereunder in accordance
\n with the terms of this Guaranty.<\/p>\n
15. Guarantor covenants with Beneficiaries as follows:<\/p>\n
(a) Guarantor will furnish to Beneficiaries the following:<\/p>\n
(i) No later than sixty (60) days after the end of each fiscal
\n quarter of Guarantor an unaudited balance sheet and income statement,
\n certified as true and correct by the chief financial officer of
\n Guarantor or by any other duly authorized representative of Guarantor
\n reasonably acceptable to Beneficiaries, which shall be prepared on the
\n accounting basis adopted by Guarantor for federal income tax purposes
\n consistently applied (except insofar as any change in the application
\n thereof is disclosed in such financial statements).<\/p>\n
(ii) No later than one hundred twenty (120) days after the end of
\n each fiscal year of Guarantor an audited balance sheet and income
\n statement prepared in accordance with GAAP.<\/p>\n
None of the aforesaid financial statements or any certificate or statement
\n furnished to Beneficiaries by or on behalf of Guarantor in connection with
\n the transactions contemplated hereby, and none of the representations and
\n warranties in this Guaranty, shall contain any<\/p>\n
8<\/p>\n
untrue statement of a material fact or omit to state a material fact
\n necessary in order to make the statements contained therein or herein not
\n misleading.<\/p>\n
(b) Guarantor shall give notice to Beneficiaries promptly upon the
\n occurrence of:<\/p>\n
(i) any known default or Event of Default; and<\/p>\n
(ii) any (A) material default or event of default by Guarantor
\n under any contractual obligation of Guarantor or (B) litigation,
\n investigation or proceeding which may exist at any time between
\n Guarantor or any Person or Governmental Authority which could have a
\n material adverse effect on the ability of Guarantor to pay its
\n obligations hereunder.<\/p>\n
Each notice pursuant to this paragraph shall be accompanied by a statement
\n setting forth details of the occurrence referred to therein and stating
\n what action Guarantor proposes to take with respect thereto.<\/p>\n
(c) Guarantor agrees, upon the reasonable request of Beneficiaries, to
\n do any act or execute any additional documents as may be reasonably
\n required by Beneficiaries to accomplish or further confirm the provisions
\n of this Guaranty.<\/p>\n
16. Beneficiaries may declare Guarantor to be in default under this
\nGuaranty upon the occurrence of any of the following events (“Events of
\nDefault”).<\/p>\n
(a) If Guarantor fails to pay any amounts required to be paid or
\n expended under this Guaranty and such nonpayment continues for ten (10)
\n Business Days after written notice of such nonpayment;<\/p>\n
(b) If Guarantor fails to comply with any covenants and agreements
\n made by it in this Guaranty (other than those specifically described in any
\n other subparagraph of this paragraph 16) and such noncompliance continues
\n for fifteen (15) Business Days after written notice of such nonperformance,
\n provided, however, that if any such noncompliance is reasonably susceptible
\n of being cured within thirty (30) Business Days, but cannot with due
\n diligence be cured within fifteen (15) Business Days, and if Guarantor
\n commences to cure any noncompliance within said fifteen (15) Business Days
\n and diligently prosecutes the cure to completion, then Guarantor shall not
\n during such period of diligently curing be in default hereunder as long as
\n such default is completely cured within thirty (30) Business Days of the
\n first notice of such default to Guarantor;<\/p>\n
(c) If any representation or warranty made by Guarantor hereunder was
\n false or misleading in any material respect as of the time made;<\/p>\n
9<\/p>\n
(d) If any of the following events occur with respect to Guarantor:
\n (i) by order of a court of competent jurisdiction, a receiver, liquidator
\n or trustee of Guarantor or of any of the property of Guarantor (other than
\n non-material property and with respect to which the appointment hereinafter
\n referred to would not materially adversely affect the financial condition
\n of Guarantor) shall be appointed and shall not have been discharged within
\n ninety (90) days; (ii) a petition in bankruptcy, insolvency proceeding or
\n petition for reorganization shall have been filed against Guarantor and
\n same is not withdrawn, dismissed, canceled or terminated within ninety (90)
\n days; (iii) Guarantor is adjudicated bankrupt or insolvent or a petition
\n for reorganization is granted (without regard for any grace period provided
\n for herein); (iv) if there is an attachment or sequestration of any of the
\n property of Guarantor and same is not discharged or bonded over within
\n ninety (90) days; (v) if Guarantor files or consents to the filing of any
\n petition in bankruptcy or commences or consents to the commencement of any
\n proceeding under the Federal Bankruptcy Code or any other law, now or
\n hereafter in effect, relating to the reorganization of Guarantor or the
\n arrangement or readjustment of the debts of Guarantor; or (vi) if Guarantor
\n shall make an assignment for the benefit of its creditors or shall admit in
\n writing its inability to pay its debts generally as they become due or
\n shall consent to the appointment of a receiver, trustee or liquidator of
\n Guarantor or of all or any material part of its property;<\/p>\n
(e) If Guarantor ceases to do business or terminates its business for
\n any reason whatsoever or shall cause or institute any proceeding for the
\n dissolution of Guarantor; or<\/p>\n
(f) Except pursuant to Section 2, if Guarantor attempts to withdraw,
\n revoke or assert that the Guaranty is of no force or effect.<\/p>\n
17. If any of the provisions of this Guaranty, or the application
\nthereof to any Person or circumstances, shall, to any extent, be invalid or
\nunenforceable, the remainder of this Guaranty, or the application of such
\nprovision or provisions to Persons or circumstances other than those as to whom
\nor which it is held invalid or unenforceable, shall not be affected thereby, and
\nevery provision of this Guaranty shall be valid and enforceable to the fullest
\nextent permitted by law.<\/p>\n
18. This writing is intended by the parties as a final expression of
\nthis Guaranty, and is intended to constitute a complete and exclusive statement
\nof the term of the agreement among the parties hereto. There are no promises or
\nconditions, expressed or implied, unless contained in this writing. No course of
\ndealing, course of performance or trade usage, and no parol evidence of any
\nnature, shall be used to supplement or modify the terms of this Guaranty. No
\namendment, modification, termination or waiver of any provision of this
\nGuaranty, shall in any event be effective unless the same shall be in writing
\nand signed by Beneficiaries, and then such waiver or consent shall be effective
\nonly in the specific instance and for the specific purpose for which given. No<\/p>\n
10<\/p>\n
waiver shall be implied from Beneficiaries’s delay in exercising or failing to
\nexercise any right or remedy against Developer, Guarantor or any collateral
\ngiven to secure the Obligations.<\/p>\n
19. Notices. Notices shall be given as follows:
\n ——-<\/p>\n
(i) Any notice, demand or other communication which any party may
\n desire or may be required to give to any other party shall be in
\n writing delivered by (i) hand-delivery, (ii) a nationally recognized
\n overnight courier, (iii) telecopy, or (iv) mail addressed to a party
\n at its address set forth below, or to such other address as the party
\n to receive such notice may have designated to all other parties by
\n notice in accordance herewith:<\/p>\n
If to City: Mayor
\n City of Detroit
\n 1126 City-County Building
\n Detroit, Michigan 48226
\n Telecopier No.: 313-224-____<\/p>\n
with copies to: Corporation Counsel
\n City of Detroit
\n First National Building
\n 660 Woodward Avenue
\n Suite 1650
\n Detroit, Michigan 48226
\n Telecopier No.: 313-224-5505<\/p>\n
If to EDC: _______________________
\n _______________________
\n _______________________
\n _______________________<\/p>\n
with copies to: _______________________
\n _______________________
\n _______________________
\n _______________________
\n _______________________<\/p>\n
11<\/p>\n
If to Developer: _______________________
\n _______________________
\n _______________________
\n _______________________<\/p>\n
with copies to: _______________________
\n _______________________
\n _______________________
\n _______________________<\/p>\n
(ii) Any such notice, demand or communication shall be deemed
\n delivered and effective upon the earlier to occur of actual delivery
\n or, if delivered by telecopier, the same day as confirmed by
\n telecopier transmission or the first Business Day thereafter if
\n telecopied on a non-Business Day.<\/p>\n
20. Time is of the essence in performance of this Guaranty by
\nGuarantor.<\/p>\n
21. Guarantor’s obligations under this Guaranty are in addition to its
\nobligations under any other existing or future guaranties, each of which shall
\nremain in full force and effect until it is expressly modified or released in a
\nwriting signed by Beneficiaries. Guarantor’s obligations under this Guaranty are
\nindependent of those of Developer under the Development Agreement.<\/p>\n
22. The terms of this Guaranty shall bind and benefit the legal
\nrepresentatives, successors and assigns of Beneficiaries and Guarantor;
\nprovided, however, that Guarantor may not assign this Guaranty, or assign or
\ndelegate any of its rights or obligations under this Guaranty, without the prior
\nwritten consent of Beneficiaries in each instance.<\/p>\n
23. This Guaranty shall be governed by, and construed in accordance
\nwith, the local laws of the State of Michigan without application of its law of
\nconflicts principles.<\/p>\n
24. If any lawsuit or arbitration is commenced which arises out of, or
\nwhich relates to this Guaranty or the Development Agreement, the prevailing
\nparty in such lawsuit or arbitration shall be entitled to recover from each
\nother party such sums as the court or arbitrator may adjudge to be reasonable
\nattorneys’ fees (including reasonably allocated costs for services of in-house
\ncounsel) in the action or proceeding in addition to costs and expenses otherwise
\nallowed by law. In any bankruptcy, reorganization, receivership, or other
\nproceedings affecting creditor’s rights involving a claim under this Guaranty,
\nGuarantor agrees to pay all of reasonable costs and expenses of Beneficiaries,
\nincluding attorneys’ fees (including reasonably allocated costs for services of
\nin-house counsel) which may be incurred in any effort to collect on or enforce
\nany term of this Guaranty, but only to the extent permitted by the court having
\njurisdiction over such proceedings. From the time(s) incurred until paid in
\nfull, all sums shall bear interest at the Default Rate.<\/p>\n
12<\/p>\n
25. No amounts shall be due hereunder unless and until Guarantor has
\nreceived notice pursuant to paragraph 4 hereof.<\/p>\n
26. EACH PARTY TO THIS GUARANTY HEREBY EXPRESSLY WAIVES ANY RIGHT TO
\nTRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER THE
\nDEVELOPMENT AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO
\nTHE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH RESPECT TO THIS GUARANTY,
\nTHE DEVELOPMENT AGREEMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE
\nWHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR
\nTORT OR OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH
\nCLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT
\nA JURY, AND THAT ANY PARTY TO THIS GUARANTY MAY FILE AN ORIGINAL COUNTERPART OR
\nA COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE
\nSIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.<\/p>\n
IN WITNESS WHEREOF, this Guaranty has been duly executed as of the day
\nand year first above written.<\/p>\n
[SIGNATURE BLOCK]<\/p>\n
13<\/p>\n
EXHIBIT 7.7(a)
\n————–<\/p>\n
The Capitalized Maintenance Fund will be determined as follows:<\/p>\n
a. During the first two full Fiscal Years after Completion, one percent
\n (1%) of net revenues of the Casino Complex; and<\/p>\n
b. During the subsequent Fiscal Years, one and one-half percent (1 1\/2%)
\n of net revenues of the Casino Complex.<\/p>\n
-1-<\/p>\n
EXHIBIT 21.25: FORM OF ESTOPPEL CERTIFICATE FROM THE CITY
\n ———————————————————<\/p>\n
__________, ____<\/p>\n
[Name of Financial Institution] (“Addressee”)
\n[Address of Financial Institution]
\nAttn: ________________________<\/p>\n
Re: Development Agreement between the City of Detroit, the Economic
\n Development Corporation of the City of Detroit and [Developer]
\n (“Developer”) for the City of Detroit Casino Development Project (the
\n “Agreement”), dated _______________, 1998<\/p>\n
Ladies and Gentlemen:<\/p>\n
The undersigned, the City of Detroit, a municipal corporation (“City”),
\nprovides this Estoppel Certificate (“Certificate”) to you with respect to those
\nmatters and only those matters set forth herein concerning the above-referenced
\nAgreement:<\/p>\n
As of the date of this Certificate, the undersigned hereby certifies that
\nto the undersigned’s actual knowledge:<\/p>\n
1. Attached hereto as Exhibit A is a true, accurate, and complete copy of the
\n ———
\n Agreement. The Agreement has not been amended except as set forth in
\n Exhibit A.
\n ———<\/p>\n
2. The Agreement has not been terminated or canceled. The City has\/has not
\n sent to Developer notice in accordance with the terms of the Agreement
\n alleging that the Developer is in default under the Agreement. [If a notice
\n has been sent, a copy is attached].<\/p>\n
3. The City has\/has not received notice from Developer in accordance with the
\n terms of the Agreement alleging that the City is in default under the
\n Agreement. [If a notice has been sent, a copy is attached].<\/p>\n
4. The Effective Date, as such term is defined in the Agreement, was
\n __________, 1998. The Closing Date, as such term is defined in the
\n Agreement, [was __________, 1999\/has not occurred].<\/p>\n
Notwithstanding the representations herein, in no event shall this
\nCertificate subject the City to any liability whatsoever, despite the negligent
\nor otherwise inadvertent failure of the City to disclose correct or relevant
\ninformation, or constitute a waiver with respect to any act of Developer for
\nwhich approval by the City was required but not sought or obtained, provided
\nthat, as between the City and Addressee, the City shall be estopped from denying
\nthe accuracy of this Certificate. No party other than Addressee shall have the
\nright to rely on this Certificate. In no event shall this <\/p>\n
Certificate amend or modify the Agreement, and the City shall not be estopped
\nfrom denying the accuracy of this Certificate as between the City and any party
\nother than the Addressee.<\/p>\n
CITY OF DETROIT,
\n a municipal corporation.<\/p>\n
By: __________________________________
\n Name: __________________________________
\n Title: __________________________________<\/p>\n
2<\/p>\n
EXHIBIT 21.25: FORM OF ESTOPPEL CERTIFICATE FROM THE EDC
\n ——————————————————–<\/p>\n
, 1998
\n ———–<\/p>\n
[Name of Financial Institution] (“Addressee”)
\n[Address of Financial Institution]
\nAttn:
\n ———————-<\/p>\n
Re: Development Agreement between the City of Detroit, the Economic
\n Development Corporation of the City of Detroit and [Developer]
\n (“Developer”) for the City of Detroit Casino Development Project (the
\n “Agreement”), dated , 1998
\n ————-
\nLadies and Gentlemen:<\/p>\n
The undersigned, Economic Development Corporation of the City of Detroit, a
\nMichigan public body corporate (“EDC”), provides this Estoppel Certificate
\n(“Certificate”) to you with respect to those matters and only those matters set
\nforth herein concerning the above-referenced Agreement:<\/p>\n
As of the date of this Certificate, the undersigned hereby certifies that
\nto the undersigned’s actual knowledge:<\/p>\n
1. Attached hereto as Exhibit A is a true, accurate, and complete copy of the
\n ———
\n Agreement. The Agreement has not been amended except as set forth in
\n Exhibit A.
\n ———<\/p>\n
2. The Agreement has not been terminated or canceled. The EDC has\/has not sent
\n to Developer notice in accordance with the terms of the Agreement alleging
\n that the Developer is in default under the Agreement. [If a notice has been
\n sent, a copy is attached].<\/p>\n
3. The EDC has\/has not received notice from Developer in accordance with the
\n terms of the Agreement alleging that the EDC is in default under the
\n Agreement. [If a notice has been sent, a copy is attached].<\/p>\n
4. The Effective Date, as such term is defined in the Agreement, was
\n , 1998. The Closing Date, as such term is defined in
\n ———–
\n the Agreement, [was , 1999\/has not occurred].
\n ———–<\/p>\n
Notwithstanding the representations herein, in no event shall this
\nCertificate subject EDC to any liability whatsoever, despite the negligent or
\notherwise inadvertent failure of EDC to disclose correct or relevant
\ninformation, or constitute a waiver with respect to any act of Developer for
\nwhich approval by the EDC was required but not sought or obtained, provided
\nthat, as between EDC and Addressee, EDC shall be estopped from denying the
\naccuracy of this Certificate. No party other than Addressee shall have the right
\nto rely on this Certificate. In no event shall this Certificate <\/p>\n
amend or modify the Agreement, and EDC shall not be estopped from denying the
\naccuracy of this Certificate as between the EDC and any party other than the
\nAddressee.<\/p>\n
ECONOMIC DEVELOPMENT CORPORATION,
\n a Michigan public body corporate.<\/p>\n
By: \/s\/
\n ——————————
\n Name:
\n —————————-
\n Title:
\n —————————<\/p>\n
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