EXHIBIT 10.17
A MENDED AND R ESTATED J OINT M ARKETING A GREEMENT
T HIS A MENDED AND R ESTATED J OINT M ARKETING A GREEMENT (this “Agreement”) is made as of
this 26th day of April 2005, by and among Resorts International
Hotel, Inc. , a New Jersey corporation having a place of
business at 1133 Boardwalk, Atlantic City, New Jersey 08401
(“RIH”), Colony Resorts LVH Acquisitions, LLC ,
a Nevada limited liability company having a place of business at
The Las Vegas Hilton, 3000 Paradise Road, Las Vegas, Nevada 89109
(“LVH”) and Resorts International Holdings, LLC
, a Delaware limited liability company (“RIH Resorts,”
and together with the direct and indirect subsidiaries of RIH
Resorts set forth on Schedule A hereto,
“Resorts”), having places of business at Resorts East
Chicago, 777 Harrah’s Boulevard, East Chicago, Indiana 46312,
Resorts Tunica, 1100 Casino Strip Boulevard, Robinsonville,
Mississippi 38664, The Atlantic City Hilton, Boston Avenue &
The Boardwalk, Atlantic City, New Jersey 08401 and Bally’s
Tunica, 1450 Bally’s Boulevard, Robinsonville, Mississippi
38664.
R ECITALS :
A. RIH owns and operates “Resorts Atlantic
City,” a hotel and casino resort facility located in Atlantic
City, New Jersey (“RIH Casino”).
B. LVH owns and operates “The Las Vegas
Hilton” a hotel and casino resort facility located in Las
Vegas, Nevada (“LVH Casino”).
C. Resorts owns and operates “Resorts East
Chicago,” a hotel and casino resort facility located in East
Chicago, Indiana (the “IN Casino”), “Resorts
Tunica,” a hotel and casino resort facility located in
Robinsonville, Mississippi (the “MS I Casino”),
“The Atlantic City Hilton,” a hotel and casino resort
facility located in Atlantic City, New Jersey (the “NJ
Casino”) and “Bally’s Tunica,” a hotel and
casino resort facility located in Robinsonville, Mississippi (the
MS II Casino, and together with the IN Casino, the MS I Casino and
the NJ Casino, the “Resorts Casinos”). The RIH Casino,
the LVH Casino and the Resorts Casinos are referred to herein
collectively as the “Casinos”.
D. By virtue of extensive marketing and promotion,
and adhering to the highest standards of service, the name
“R ESORTS
I NTERNATIONAL ” and the related marks listed on
Schedule B hereto (collectively, the “Resorts
International Marks”) have become well-known to the public,
and enjoy a superior reputation and widespread goodwill with
respect to the quality of services and products bearing the Resorts
International Marks.
E. RIH, LVH and Resorts each has substantial
experience in the marketing and operation of hotel and casino
resort facilities, and independently possesses unique and
proprietary knowledge in the areas of marketing database systems
management and premium player development.
F. RIH, LVH and Resorts each believes it to be in
its best interests to promote its respective Casino(s) by
undertaking certain joint advertising and marketing efforts in
accordance with the terms and conditions set forth in this
Agreement.
N OW ,
T HEREFORE
, in consideration of the premises and mutual
promises and representations contained herein, and other good and
valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
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1.
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J
OINT A DVERTISING AND M ARKETING E FFORTS .
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1.1 Cooperative Covenant .
The parties agree to cooperatively develop and implement such joint
advertising and marketing programs for the Casinos as they may
mutually agree upon. In connection with the efforts of the parties
under this Agreement, each party shall utilize such personnel,
resources, skills, know-how and information, as it considers
necessary and consistent with its internal policies. It is
understood by the parties that the nature of this cooperative
effort is such that results cannot be guaranteed and that these
efforts are being performed on a best efforts basis.
1.2 Joint Advertising and
Marketing Efforts . Each of RIH, LVH and Resorts shall (a) use
reasonable efforts to cross-advertise one another’s Casinos
through its promotional materials and customer service
representatives and (b) undertake and coordinate such additional
promotional and marketing initiatives as the parties may agree from
time to time. Each of the parties specifically agrees that the
form, content and design of any and all advertisements and
promotional materials featuring another party shall at all times
during the Term (as defined below) be subject to such party’s
final approval.
1.3 Participation in
Promotions . Each of RIH, LVH and Resorts may, to the extent
practicable, participate in promotional events sponsored by the
others. Such participation shall be on a case-by-case
basis.
1.4 Identification in Promotional
Materials . Throughout the Term of this Agreement, each of the
parties agrees to include prominent references to the RIH Casino,
the LVH Casino and the Resorts Casinos, as the case may be, on all
promotional and advertising material where such a reference would
be appropriate.
1.5 Joint Review . Each of
LVH, RIH and Resorts shall designate a person with authority to
review and approve on behalf of such party all promotional
materials using the Marks (as hereinafter defined) of such party.
There shall be overall joint cooperation and review of all proposed
promotional and marketing initiatives. Periodic conferences shall
be held among RIH, LVH and Resorts personnel to review the progress
of the advertising and marketing initiatives implemented pursuant
to this Agreement and to discuss and review in advance any new
advertising and marketing strategies. The parties shall make a good
faith effort to agree on any necessary changes to the advertising
and marketing strategies developed under this Agreement, but final
approval of any program or use of the Marks of a party shall be in
such party’s sole discretion.
1.6 Mutual Covenant as to
Advertisement . Each of RIH, LVH and Resorts agrees that its
marketing and advertising efforts shall at all times comply with
all applicable laws, rules and regulations and will not contain any
material which is obscene, threatening, fraudulent, harassing,
libelous, infringing of third party intellectual property rights,
or otherwise illegal or offensive.
1.7. LVH Hilton Agreement .
RIH and Resorts acknowledge that LVH is subject to certain
limitations and is required to comply with certain procedures in
connection with advertising and marketing under the License
Agreement dated as of June 18, 2004 between LVH and Hilton Inns,
Inc. (the “LVH Hilton License”). RIH and Resorts agree
that any advertising and/or marketing of the LVH Casino is subject
in all respects to the terms of the LVH Hilton License, and that in
connection with any advertising and/or marketing of the LVH Casino
by any means, including, without limitation, the use of websites,
RIH and Resorts shall comply with all applicable terms, conditions
and limitations set forth in the LVH Hilton License.
1.8. AC Hilton Agreement .
RIH and LVH acknowledge that Resorts is subject to certain
limitations and is required to comply with certain procedures in
connection with advertising and marketing under the License
Agreement dated as of April 26, 2005 between RIH Acquisitions NJ,
LLC and Hilton Inns, Inc. (the “AC Hilton License”).
RIH and LVH agree that any advertising and/or marketing of the NJ
Casino is subject in all respects to the terms of the AC Hilton
License, and that in connection with any advertising and/or
marketing of the NJ Casino by any means, including, without
limitation, the use of websites, RIH and LVH shall comply with all
applicable terms, conditions and limitations set forth in the AC
Hilton License.
1.9 Bally’s Tunica
Agreement . RIH and LVH acknowledge that Resorts is subject to
certain limitations and is required to comply with certain
procedures in connection with advertising and marketing under the
License Agreement dated as of March 2, 2005 between Caesars
Entertainment, Inc. and RIH Acquisitions MS II, LLC (the
“Bally’s License”). RIH and LVH agree that any
advertising and/or marketing of the MS II Casino is subject in all
respects to the terms of the Bally’s License, and that in
connection with any advertising and/or marketing of the MS II
Casino by any means, including, without limitation, the use of
websites, RIH and LVH shall comply with all applicable terms,
conditions and limitations set forth in the Bally’s
License.
2.1 Term . The term of this
Agreement shall commence on the date hereof and shall continue for
a period of ten (10) years (the “Initial Term”) and, at
the end of the Initial Term and each year thereafter, shall
automatically renew for an additional one (1) year (Initial Term
together with any renewal, the “Term”) unless the
Initial Term or Term are sooner terminated as provided for
herein.
2.2 Termination . This
Agreement may be terminated with respect to any party:
a. Upon six (6) months’ prior
written notice to the other parties; or
b. Upon the mutual written consent
of all parties.
2.3 Automatic Termination .
This Agreement shall automatically terminate with respect to any
party or, in the case of subclause (f) below, with respect to LVH
only, upon the occurrence of any of the following
events:
a. The breach by such party of any
of its obligations hereunder provided that the other parties have
given written notice of the alleged breach and such breach is
continuing after thirty (30) days from the date of said
notice;
b. The loss by such party of any
license required to operate any Casino;
c. Any material part of such
party’s rights under this Agreement shall be declared invalid
or unenforceable;
d. Such party ceases to function as
a going concern, becomes insolvent, makes an assignment for the
benefit of creditors, files a petition or has a petition filed
against it under any bankruptcy, insolvency, reorganization or
similar law in any country, commits an act of bankruptcy or similar
law or takes any action to effect any of the foregoing;
or
e. The acquisition of such party by
a third party, whether by way of merger, consolidation, asset sale
or stock sale.
f. In the event Archon Financial,
L.P. exercises any of it remedies pursuant to the Loan Agreement
dated as of June 18, 2004 between LVH, as Borrower, and Archon
Financial, L.P., as Lender, including foreclosure on the LVH Casino
or the tender by LVH of a deed in lieu of foreclosure.
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3.
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C
ROSS -L ICENSING P ROVISIONS .
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3.1 Trademark Licensing
.
a. License Grant to RIH and
Resorts . LVH hereby grants to RIH and Resorts a non-exclusive,
limited, worldwide, non-assignable and royalty-free license
throughout the Term of this Agreement (i) to display the LVH
Trademarks (as defined below) on RIH’s and Resorts’
Internet web sites and RIH’s and Resorts’ promotional
materials in order to promote the LVH Casino and (ii) to otherwise
carry out RIH’s and Resorts’ obligations under this
Agreement. RIH and Resorts hereby agree not to use the LVH
Trademarks or any confusingly similar marks in connection with any
goods or services other than those relating to the LVH Casino. For
purposes of this Agreement, the “LVH Trademarks” shall
mean those trademarks, service marks,
names, logos and designations
identified in Schedule C attached hereto, together with such
other marks that may be adopted by LVH after the date hereof and
included within the scope of this Agreement by notice from LVH to
RIH and Resorts.
b. License Grant to LVH and
Resorts . RIH hereby grants to LVH and Resorts a non-exclusive,
limited, worldwide, non-assignable and royalty-free license
throughout the Term of this Agreement (i) to display the RIH
Trademarks (as defined below) on LVH’s and Resorts’
Internet web sites and LVH’s and Resorts’ promotional
materials in order to promote the RIH Casino and (ii) to otherwise
carry out LVH’s and Resorts’ obligations under this
Agreement. LVH and Resorts hereby agree not to use the RIH
Trademarks or any confusingly similar marks in connection with any
goods or services other than those relating to the RIH Casino other
than as expressly provided herein. For purposes of this Agreement,
the “RIH Trademarks” shall mean those trademarks,
service marks, names, logos and designations identified in
Schedule D attached hereto, together with such other marks
that may be adopted by RIH after the date hereof and included
within the scope of this Agreement by notice from RIH to LVH and
Resorts. In addition, RIH hereby grants to LVH and Resorts a
non-exclusive, worldwide, non-assignable and royalty-free license
throughout the Term of this Agreement to use the Resorts
International Marks in connection with the operation, advertising
and promotion of the LVH Casino and the Resorts Casinos, and the
right to sublicense the Resorts International Marks to Hilton Inns,
Inc. pursuant to the LVH Hilton License.
c. License Grant to RIH and
LVH . Resorts hereby grants to RIH and LVH a non-exclusive,
limited, worldwide, non-assignable and royalty-free license
throughout the Term of this Agreement (i) to display the Resorts
Trademarks (as defined below) on RIH’s and LVH’s
Internet web sites and RIH’s and LVH’s promotional
materials in order to promote the Resorts Casinos and (ii) to
otherwise carry out RIH’s and LVH’s obligations under
this Agreement. RIH and LVH hereby agree not to use the Resorts
Trademarks or any confusingly similar marks in connection with any
goods or services other than those relating to the Resorts Casinos.
For purposes of this Agreement, the “Resorts
Trademarks” shall mean those trademarks, service marks,
names, logos and designations identified in Schedule E
attached hereto, together with such other marks that may be adopted
by Resorts after the date hereof and included within the scope of
this Agreement by notice from Resorts to RIH and LVH (the Resorts
Trademarks, the LVH Trademarks, the RIH Trademarks and the Resorts
International Marks shall be collectively referred to as the
“Marks”).
3.2 Title to Marks . Each
party acknowledges that nothing contained in this Agreement
transfers to the other parties any right, title or proprietary
interest (including without limitation any intellectual property
rights), in any part of the marketing or promotional efforts which
are the subject matter hereof, or any proprietary information
including, without limitation, the Marks, trade secrets, know-how,
inventions, patents (including applications, extensions,
continuations, renewals and re-issues thereof), copyrights and
designs. Except as provided herein, no licenses of any
party’s Marks are granted or implied under this
Agreement.
3.3 Goodwill Associated with
Marks . The parties agree that protection of the goodwill
associated with their respective Marks and the protection of
consumers against trademark confusion are of paramount importance
to each of them. Accordingly, the parties covenant not to do
anything that would damage the goodwill presently associated with
the LVH Trademarks, the RIH Trademarks, the Resorts International
Marks or the Resorts Trademarks, as the case may be, and to always
cooperate with each other to prevent consumers from being confused
as to the source or origin of the goods and services produced and
marketed by each of them under their respective Marks.
3.4 Use of Resorts International
Marks and RIH Trademarks . RIH shall have the right to exercise
quality control over the Resorts International Marks and the RIH
Trademarks to the extent necessary to maintain the validity of the
Resorts International Marks and the RIH Trademarks and to protect
the goodwill associated therewith. In using the Resorts
International Marks and the RIH Trademarks, LVH and Resorts shall
adhere to a level of quality consistent with the standards of
quality establ