***CONFIDENTIAL TREATMENT REQUESTED
***
EXHIBIT 10.1
Confidential terms of this agreement
which have been redacted are marked (“[*****]”). The
omitted materials have been filed separately with the Securities
and Exchange Commission.
OPTIONS AGREEMENT
THIS OPTIONS AGREEMENT
(this “ Agreement
”) is entered into as of September 30, 2005 by and
between HUNTING FOX ASSOCIATES I, L.P. , a Pennsylvania
limited partnership having offices at 1001 East Hector Street,
Suite 100, Conshohocken, Pennsylvania 19428 (“ Owner
”), and TER KEYSTONE DEVELOPMENT, LLC , a Delaware
limited liability company having offices at 1000 Boardwalk,
Atlantic City, NJ 08401 (“ Trump ”).
RECITALS:
WHEREAS, Owner owns the real property (the “
Property ”) located at the intersection of Fox Street
and Roberts Avenue in Philadelphia, PA comprising approximately
eighteen (18) acres and more particularly described on
Exhibit A attached hereto and made a part hereof;
and
WHEREAS, Owner and Trump have reached agreement with
respect to Owner granting Trump (i) an option to lease the
Property on and subject to the terms and conditions set forth in
the Ground Lease attached hereto as Exhibit B and made a
part hereof (the “ Ground Lease ”), and
(ii) an option to purchase the Property in lieu of leasing the
Property on and subject to the terms and conditions set forth
herein.
NOW, THEREFORE,
in consideration of the mutual
covenants and conditions herein contained and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties intending to be legally bound
hereby agree as follows:
1. Grant of Options; Lease Option Price;
Termination Fee; Security . Owner, for and in consideration
of the sum of [*****]($[*****]) Dollars, or such lesser sum as may
due and payable hereunder (the “ Option Price
”), to be paid by Trump to Owner in accordance with the terms
of this Agreement, and in consideration of the covenants and
agreements herein contained, does hereby give, grant and convey to
Trump or an affiliate of Trump the sole and exclusive right and
option to either (i) lease the Property on the terms and
conditions set forth in the Ground Lease (the “ Lease
Option ”), or (ii) purchase the Property on the
terms and conditions set forth herein (the “ Purchase
Option ”). Trump shall pay the Option Price to Owner as
follows:
a. [*****] ($[*****]) Dollars upon
execution and delivery of this Agreement;
b. [*****] ($[*****]) Dollars upon
execution and delivery of this Agreement, representing the
quarterly payment for the period from the date hereof through and
including October 30, 2005; and
***CONFIDENTIAL TREATMENT REQUESTED
***
c. Quarterly payments, in advance
for the three month period immediately following the due date
thereof, in the amount of [*****] ($[*****]) Dollars on each of the
following dates: October 31, 2005, January 31,
2006, April 30, 2006, July 31,
2006, October 31, 2006, January 31,
2007, April 30, 2007, July 31,
2007, October 31, 2007, January 31,
2008, April 30, 2008, July 31,
2008, October 31, 2008, January 31,
2009, April 30, 2009, July 31,
2009, October 31, 2009, January 31, 2010 and
April 30, 2010 (each, a “ Quarterly Payment
”).
Except as expressly set forth in this Agreement,
the Option Price (and all installments thereof) paid in accordance
herewith shall be nonrefundable and shall be retained by Owner
whether or not the Lease Option or the Purchase Option is exercised
in accordance with the terms of this Agreement. In the event Trump
fails to make any Quarterly Payment within ten (10) days after
written notice that the same is due, Trump shall be deemed to have
terminated this Agreement and, as a result thereof Trump shall have
no further rights related to the Property or under this Agreement
or the Ground Lease. Notwithstanding anything herein to the
contrary, however, if the Lease Option or Purchase Option is
exercised or both are terminated, in each case in accordance with
the terms hereof, all Quarterly Payments due subsequent to the date
of such exercise or termination shall be deemed waived and no
longer due or payable. In the event Trump terminates this Agreement
(including, but not limited to, as a result of its failure to make
any Quarterly Payment within ten (10) days after written
notice that the same is due), or fails to exercise either the Lease
Option or Purchase Option within the Term (as hereinafter defined),
then Trump shall immediately pay Owner a termination fee in the
amount of [*****] ($[*****]) Dollars (the “ Termination
Fee ”), which Termination Fee shall be in addition to all
other sums due and payable under this Agreement.
Upon execution and delivery of this Agreement,
Trump shall deliver or cause to be delivered to Owner a letter of
credit (the “Initial Letter of Credit”) issued by a
bank or other lending institution having assets of at least
$50,000,000,000.00 or a Standard & Poors rating of
“A” or better which has an office where letters of
credit may be drawn upon in Philadelphia, Pennsylvania, which
Initial Letter of Credit shall be in form and substance reasonably
acceptable to Owner and secure the obligation of Trump hereunder
and/or the tenant under the Ground Lease to pay to Owner and/or the
landlord under the Ground Lease, the first [*****] ($[*****])
Dollars due and payable under this Agreement and/or the Ground
Lease (other than that portion of the Option Price payable upon
execution of this Agreement), whether in the form of payments of
the Option Price (other than that portion of the Option Price
payable upon execution of this Agreement), Termination Fee, Base
Rent or Percentage Rent or portions thereof (collectively, the
“ Initial Secured Obligation ”). Notwithstanding
anything herein or in the Ground Lease to the contrary, the Initial
Letter of Credit shall be released and automatically deemed to have
been terminated and be of no further force or effect immediately
upon the Owner’s and/or landlord’s receipt of the
Initial Secured Obligation.
2. Term . The term of this
Agreement (the “ Term ”) shall commence on the
date hereof and shall expire on July 31, 2010 or such earlier
date if Trump fails to timely make any payments hereunder or is
otherwise in default under this Agreement and fails to cure such
failure within ten (10) days of notice thereof (except that no
notice shall be required in the event of the third monetary default
hereunder). Trump may exercise the Lease Option or Purchase Option
at any time during the Term, by providing written notice thereof to
Owner (as applicable, the “ Exercise Notice ”)
and otherwise complying with the terms and conditions of this
Agreement, which Exercise Notice must be received by Owner prior to
the expiration of the Term, time being of the essence.
2
***CONFIDENTIAL TREATMENT REQUESTED
***
3. Exercise of Lease Option . In
the event of Trump’s exercise of the Lease Option, along with
the Exercise Notice, Trump shall deliver to Owner four
(4) copies of the Ground Lease all executed by the tenant
thereunder. In addition, Trump shall deliver or cause to be
delivered to Owner, along with the Exercise Notice, a letter of
credit (the “Letter of Credit”) issued by a bank or
other lending institution having assets of at least
$50,000,000,000.00 or a Standard & Poors rating of
“A” or better which has an office where letters of
credit may be drawn upon in Philadelphia, Pennsylvania, which
Letter of Credit shall be in form and substance reasonably
acceptable to Owner and secure the obligation of Trump hereunder
and/or the tenant under the Ground Lease to pay to Owner and/or the
landlord under the Ground Lease, the first [*****] ($[*****])
Dollars due and payable under this Agreement and/or the Ground
Lease (other than that portion of the Option Price payable upon
execution of this Agreement and the obligations secured by the
Initial Letter of Credit), whether in the form of payments of the
Option Price, Termination Fee, Base Rent or Percentage Rent or
portions thereof (other than that portion of the Option Price
payable upon execution of this Agreement and the obligations
secured by the Initial Letter of Credit) (collectively, the “
Secured Lease Obligation ”). Notwithstanding anything
herein or in the Ground Lease to the contrary, the Letter of Credit
shall be released and automatically deemed to have been terminated
and be of no further force or effect immediately upon the
Owner’s and/or landlord’s receipt of the Secured Lease
Obligation. Within five (5) days after receipt by Owner of the
Exercise Notice, Ground Lease and Letter of Credit referred to in
this Section 3 (collectively, the “ Lease Exercise
Documents ”), Owner shall execute all four
(4) copies of the Ground Lease and deliver two (2) fully
executed copies to Trump. In the event Trump fails to provide Owner
prior to the expiration of the Term with the executed Lease
Exercise Documents, this Agreement shall automatically terminate
upon the expiration of the Term and be of no further force or
effect; provided, however, that Trump shall immediately pay to
Owner the Termination Fee in immediately available funds. If Trump
timely and properly delivers the Lease Exercise Documents, but
Owner fails to deliver the two (2) fully executed copies of
the Ground Lease as aforesaid, then Trump shall, following five
(5) days’ written notice to Owner (unless Owner cures
such failure within said five (5) days), have any and all
rights and remedies at law and in equity including, but not limited
to, the right to require the immediate return of all payments made
toward the Option Price. Further, in the event Trump timely and
properly delivers the Lease Exercise Documents, but Owner fails to
deliver possession of the Property to the tenant under the Ground
Lease in accordance with the terms hereof and thereof, then Trump
and the tenant under the Ground Lease shall each have all rights
and remedies available at law or in equity including, but not
limited to, the right to rescind the exercise of the Lease Option
and/or the right to terminate the Ground Lease, as applicable, by
providing forty-five (45) days’ prior written notice
thereof to Owner (each, a “ Termination ”);
provided, however, that in the event Owner cures such default
within the foregoing forty-five (45) day period, then the
termination notice and the Termination shall be null and void, the
Lease Option exercise shall be deemed to remain in effect and the
Ground Lease and all other Lease Exercise Documents shall continue
in full force and effect. In the event a Termination occurs and is
not cured within the foregoing forty-five (45) day period,
then Owner shall immediately return to Trump in immediate funds the
portion of the Option Price actually paid by Trump hereunder and
Trump and the tenant under the Ground Lease shall have such
additional rights and remedies as may be available at law or in
equity.
3
***CONFIDENTIAL TREATMENT REQUESTED
***
4. Exercise of Purchase Option .
In the event of Trump’s exercise of the Purchase Option,
Trump shall deliver or cause to be delivered to Owner along with
the Exercise Notice, a Letter of Credit in form and substance
reasonably acceptable to Owner, securing the obligation of Trump
hereunder to pay to Owner the first [****] ($[*****]) Dollars due
and payable under this Agreement (other than that portion of the
Option Price payable upon execution of this Agreement and the
obligations secured by the Initial Letter of Credit), whether in
the form of payments of the Option Price (other than that portion
of the Option Price payable upon execution of this Agreement) or
Termination Fee or portions thereof (the “ Secured
Purchase Obligation ”). Notwithstanding anything herein
to the contrary, the Letter of Credit shall be released and
automatically deemed to have been terminated and be of no further
force or effect immediately upon the Owner’s receipt of the
Secured Purchase Obligation. The closing of title
(“Closing”) shall take place on the first business day
following the ninetieth (90 th ) day after the Exercise
Notice. At Closing, Owner shall (a) convey to Trump or
Trump’s designee, by special warranty deed, good and
marketable fee simple title to the Property, insurable at regular
rates without exception other than the matters specifically
identified on Exhibit C attached hereto and made a part
hereof (the “ Permitted Exceptions ”) and
otherwise in compliance with the terms of Section 4 of the
Ground Lease, (b) execute and deliver to Trump or
Trump’s designee and Trump’s or Trump’s
designee’s title insurer a title affidavit of Owner in form
and substance reasonably acceptable to Trump and/or its designee,
and (c) execute and deliver to Trump or Trump’s designee
such other documents and/or instruments as may be reasonably
required by Trump, Trump’s designee and/or either of the
foregoing’s lenders or title insurers, provided that same do
not impose any cost or material obligation on Owner or any
affiliate of Owner. Owner and Trump or Trump’s designee shall
share equally any federal, state or local realty transfer tax (or
other tax or obligation in lieu thereof) imposed as a result of
such purchase and sale and shall pay same at Closing. The purchase
price to be paid by Trump or its designee to Owner at Closing for
the Property shall be the sum of
******************************************************************************************
******************************************************************************************
******************************************************************************************
******************************************************************************************
******************************************************************************************
******************************************************************************************
******************************************************************************************
******* The Purchase Price shall be adjusted
between the parties ninety (90) days after the earlier of the
end of the fifth (5 th ) year of substantially
continuous gaming operations at the Property, and the tenth
(10th) anniversary of Closing, to reflect the actual Gross
Gaming Revenue during said five (5) years of operations and
the applicable overpayment or underpayment shall be paid within
five (5) days of the determination thereof; provided, however,
in no event shall Owner be obligated to return any of the Purchase
Price to Trump or its designee as a result of such adjustment
unless a gaming facility has been substantially continuously open
and operating at the Property for at least five (5) years. If
Trump timely and properly delivers the Exercise Notice and Letter
of Credit (collectively, the “ Purchase Exercise
Documents ”), but Owner fails to satisfy each of its
obligations with respect to the Purchase Option as set forth
herein, then Trump shall, following forty-five
(45) days’ written notice to Owner (unless Owner cures
such failure within said forty-five (45) days), have any and
all rights and remedies at law or in equity including, but not
limited to, the right to rescind the Exercise Notice and the right
to require the immediate return of all payments made toward the
Option
4
***CONFIDENTIAL TREATMENT REQUESTED
***
Price; provided, however, that in the event
Owner cures such default within the foregoing forty-five
(45) day period, then the rescinding of the Exercise Notice
shall be null and void and Owner shall not be obligated to return
any payments made toward the Option Price. In addition, and
notwithstanding anything in this Agreement to the contrary, Trump
shall have the right, within forty-five (45) days of the
expiration of Owner’s right to cure its default, to deliver
an Exercise Notice pursuant to the Lease Option. The obligations of
the parties hereunder shall survive Closing.
5. Indemnification.
(a) Trump shall defend, with counsel
reasonably satisfactory to Owner, indemnify and save Owner harmless
from and against any and all claims, damages, losses, costs and
expenses including, but not limited to, reasonable attorneys’
fees and court costs, suffered or incurred by Owner that result
from (i) the use, operation and/or management of the Property
or any improvements thereon, whether by Trump or anyone claiming or
holding through Trump (including, but not limited to, any
employees, contractors, subtenants, licensees, invitees or agents
of Trump), (ii) any breach or default on the part of Trump (or
anyone claiming or holding through Trump) in the observance of, or
performance of its obligations under, this Agreement,
(iii) any injury to or death of any person, or damage to or
loss of property on or by reason of activity on the Property, but
in each case only to the extent relating to the period subsequent
to the earlier of Closing and the Commencement Date (as such term
is defined in the Ground Lease) and to the extent caused by the
negligence or wanton or willful misconduct of Trump or anyone
claiming or holding through Trump (including, but not limited to,
any employees, contractors, subtenants, licensees, invitees or
agents of Trump), and not having arisen by reason of or in
connection with (y) the negligence or wanton or willful
misconduct of Owner or Owner’s employees, agents or
contractors, and/or (z) Owner’s breach or default in the
observance of, or performance of its obligations under, this
Agreement or the Ground Lease.
(b) Owner shall defend, with counsel
reasonably satisfactory to Trump, indemnify and save Trump harmless
from and against any and all claims, damages, losses, costs and
expenses including, but not limited to, reasonable attorneys’
fees and court costs, suffered or incurred by Trump that result
from (i) the use, operation and/or management of the Property
or any improvements thereon, whether by Owner or anyone claiming or
holding through Owner (other than Trump or anyone claiming or
holding through Trump or any employees, contractors, subtenants,
licensees, invitees or agents of Trump and such third parties)
prior to the earlier of the Commencement Date and the Closing Date,
(ii) any breach or default on the part of Owner (or anyone
claiming or holding through Owner, other than Trump or anyone
claiming or holding through Trump or any employees, contractors,
subtenants, licensees, invitees or agents of any of the foregoing)
in the observance of, or performance of its obligations under, this
Agreement or the Ground Lease, (iii) any injury to or death of
any person, or damage to or loss of property on or by reason of
activity on the Property, but in each case only to the extent
relating to the period prior to the earlier of the Commencement
Date and the Closing Date, and not having arisen by reason of or in
connection with (y) the negligence or wanton or willful
misconduct of Trump or anyone claiming or holding through Trump or
any employees, contractors, subtenants, licensees, invitees or
agents of any of the foregoing, and/or (z) Trump’s
breach or default in the observance of, or performance of its
obligations under, this Agreement; but specifically excluding in
the case of each of clauses (i), (ii) and (iii), liability, if
any, for which Owner is to be indemnified under the Ground
Lease.
5
***CONFIDENTIAL TREATMENT REQUESTED
***
(c) Notice of Claim. Any
party seeking indemnification hereunder shall give prompt notice to
the other party of the basis therefore. The failure on the part of
such party to give such notice shall not relieve the other party
from its obligations hereunder, except to the extent that the
failure to give such notice results in actual loss or damage to the
indemnifying party.
(d) Survival. The obligations
of the parties pursuant to this Section shall survive the
expiration or termination of this Agreement.
6. Applications for Licensing and
Development . The parties acknowledge and agree that the
award to Trump or its designee of a license to operate a gaming
facility at the Property and the acquisition and maintenance of
related development agreements and approvals are instrumental to
Trump. Accordingly, Owner covenants and agrees, at no out-of-pocket
cost to Owner, to fully cooperate with and assist Trump and
Trump’s agents and representatives in applying for, securing
and maintaining such licenses, approvals and other consents,
permits and/or agreements as Trump may deem necessary or desirable
and as are reasonably acceptable to Owner. Moreover, Owner
covenants and agrees, at no out-of-pocket cost to Owner, to fully
cooperate with and assist Trump and Trump’s agents and
representatives in connection with the acquisition from third
parties of additional real property interests contiguous to the
Property. The obligations of Owner pursuant to this Section shall
survive exercise of the Lease Option, the purchase option set forth
in the Lease, and/or the Purchase Option, but not the expiration or
termination of this Agreement.
7. Right of Entry and Inspection; Indemnity;
Insurance .
a. During the Term, Trump and its
representatives and contractors may at any reasonable time and from
time to time, enter upon the Property for the purposes of
investigating and inspecting same, making surveys, maps and/or
contour studies, performing test borings, soil tests and/or
examinations, and conducting other studies including, but not
limited to such environmental studies as Trump may elect
(collectively, the “Due Diligence Investigation”).
Trump shall have the right to terminate this Agreement at any time
upon written notice to Owner if Trump is not satisfied with any
aspect of its Due Diligence Investigation, in which event
(i) all payments theretofore made toward the Option Price
shall be retained by Owner, (ii) Trump shall immediately pay
to Owner the Termination Fee and any then due, but not previously
paid, Quarterly Payments, (iii) Trump shall thereafter be
relieved of all obligations with respect to those Quarterly
Payments not then due and payable, and (iv) except as
expressly set forth herein or in the Ground Lease to the contrary,
Trump shall have no further rights or liabilities related to the
Property and neither Trump, the Tenant named under the Ground Lease
or Owner shall have any further liabilities or rights under this
Agreement or the Ground Lease.
b. Trump agrees to indemnify, defend
and hold harmless Owner against and in respect of any and all
damages, claims, losses, liabilities, costs and expenses
(including, without limitation, reasonable attorneys’ fees
and court costs) (collectively, the “ Losses ”),
which may be imposed upon, incurred by or assessed against Owner
arising out of, in connection with, or relating to Trump’s
inspection of or actions at the Property, including, without
limitation, claims of injury to persons or damage to property and
any and all Losses resulting from Trump’s activities at the
Property, including, inter alia, any arising from the
aggravation or exacerbation of pre-existing contamination or
conditions at the Property, but in each case only to the extent not
attributable in any manner to the negligence or willful misconduct
of Owner or
6
***CONFIDENTIAL TREATMENT REQUESTED
***
anyone claiming by or through Owner, or the
employees, contractors, agents, representatives or invitees of any
of the foregoing (other than Trump or anyone claiming by or through
Trump, or the employees, contractors, agents, representatives or
invitees of any of the foregoing). Notwithstanding anything herein
to the contrary, the discovery of Hazardous Substances or Hazardous
Wastes (as such terms are defined in the Ground Lease) or other
negative conditions at the Property during the course of the Due
Diligence Investigation and/or any legal duty to report same or the
reporting of same to the Pennsylvania Department of Environmental
Protection (“ PADEP ”) or other federal, state
or local governmental authority, shall not serve as the basis for a
claim for indemnification by Owner against Trump pursuant to this
paragraph (b). The obligations of Trump pursuant to this paragraph
shall survive the expiration or termination of this
Agreement.
c. Prior to any entry onto the
Property by Trump or any of Trump’s representatives, Trump or
its representatives shall furnish Owner with a copy of a
certificate of insurance for Trump and its representatives from a
duly licensed insurance company indicating that insurance policies
are in effect for commercial liability coverage for death or injury
to persons and/or property of not less than One Million and
00/100ths ($1,000,000.00) Dollars per occurrence/claim and in the
aggregate together with evidence of the payment of all associated
premiums.
d. In the event that this Agreement
is terminated or expires without either the Lease Option or
Purchase Option being exercised, Trump shall deliver to Owner, at
no cost or expense to Owner, within five (5) business days of
such termination or expiration, copies of all non-proprietary
plans, engineering reports, environmental studies, zoning analyses,
approvals and permits relating to the Property, which have been
generated by Trump or are in Trump’s possession and which are
assignable (collectively, the “ Trump Reports
”). Trump makes no representation or warranty as to the
correctness or completeness of the Trump Reports and Owner
expressly waives any claim whatsoever arising from the use of the
Trump Reports including, but not limited to, Owner’s (or
anyone holding or claiming through Owner) reliance upon the Trump
Reports. Owner represents and warrants to Trump, each of which
representations and warranties shall survive for the lesser of
three (3) years from the date of this Agreement and one
(1) year from the date of Trump’s exercise of either the
Lease Option or Purchase Option, that (i) prior to the date
hereof, to Owner’s actual knowledge as of the date hereof,
Owner has delivered complete copies of all environmental reports
previously obtained by Owner and relating, in whole or in part, to
the Property (collectively, the “ Owner Reports
”) and same are described on Exhibit D attached hereto
and made a part hereof, (ii) Owner has no knowledge of the
existence of any other environmental reports relating to the
Property or any part thereof, except as may be referenced in the
Owner Reports, and (iii) Owner has no actual knowledge of any
Hazardous Substance or Hazardous Waste in, on, under or about the
Property in violation of any Environmental Laws (as such term is
defined in the Ground Lease), except as described in the Owner
Reports. Owner makes no representation or warranty as to the
correctness of the Owner Reports and Trump expressly waives any
claim whatsoever arising from the use of the Owner Reports
including, but not limited to, Trump’s (or anyone holding or
claiming through Trump) reliance upon the Owner Reports.
7
***CONFIDENTIAL TREATMENT REQUESTED
***
8. Environmental Remediation and Removal of
X-Ray Building; Indemnifications .
a. Within the later of (y) two
hundred forty (240) days from the date hereof, and
(z) one hundred twenty (120) days of the delivery of the
Lease Exercise Documents or Purchase Exercise Documents by Trump,
Owner shall commence and thereafter diligently prosecute to
completion the undertakings described in subparagraphs
(i) through (iv) below. These undertakings shall be
performed at Owner’s sole cost and expense (subject to
reimbursement in accordance with subsection b below).
(i) Existing Cleanup Plan .
Provide Trump with written documentation of PADEP’s
concurrence with Owner’s August 2005 Remedial Investigation
Report/Cleanup Plan prepared by RT Environmental Services, Inc., a
copy of which is attached hereto as Exhibit E and made a
part hereof (the “Cleanup Plan”), together with not
less than monthly letter reports from Owner’s environmental
consultant as to the then-current status of the cleanup and
then-projected completion date. As described in Owner’s
March 17, 2005 Notice of Intent to Remediate, a copy of which
is attached hereto as Exhibit F and made a part hereof
(“NIR”), the Cleanup Plan shall be used by Owner to
demonstrate attainment of the Act 2 remediation standards selected
in the Cleanup Plan for each contaminant of concern (in soil)
identified in the Cleanup Plan, based on a non-residential use.
Owner acknowledges that Trump intends to construct a hotel and
gaming establishment on the Property;
(ii) Act 2 Release . Obtain
and provide to Trump a copy of a final report approval letter on
behalf of Owner and (by operation of law and in accordance with
Section 501 of Act 2) Trump under Act 2 from PADEP that
demonstrates that Owner has completed the remediation contemplated
by NIR and as approved by PADEP (the “Act 2 Cleanup”).
Owner shall also promptly provide Trump with any deficiency letters
issued by the PADEP in connection with Owner’s implementation
of the Cleanup Plan, if any, and Owner’s written response to
such deficiency letter(s), together with a copy of the final
report, risk assessment and/or other documentation submitted by or
on behalf of Owner in connection with attaining the final report
approval letter from PADEP. Trump acknowledges that deed notices
and/or deed restrictions may be required in connection with the Act
2 Cleanup, and Trump agrees to cooperate reasonably with Owner in
creating and recording such notices and/or restrictions, at no
out-of-pocket cost to Trump, provided that such deed notices and/or
deed restrictions do not unreasonably interfere with Trump’s
construction, operation or maintenance of a hotel and gaming
establishment on the Property. Trump further acknowledges that
engineering controls may be required in connection with
Owner’s performance of the Act 2 Cleanup. Prior to
instituting such controls, Owner shall obtain Trump’s express
written consent to implement the controls, such consent not to be
unreasonably withheld. Such controls are to be implemented by or on
behalf of Owner at no out-of-pocket cost to Trump and shall not
unreasonably interfere with Trump’s construction, operation
or maintenance of a hotel and gaming establishment on the Property.
Trump acknowledges that capping with asphalt or other material
satisfactory to PADEP and the United States Environmental
Protection Agency (“USEPA”) would not unreasonably
interfere with such construction, operation or maintenance. Trump
further acknowledges that in the event Owner obtains an Act 2
release as contemplated by the NIR and the Cleanup Plan, Trump may
not be able to construct, operate and/or maintain a hotel and
gaming establishment, or other improvement, on the Property without
first performing further environmental investigation and/or cleanup
in order to meet requirements of PADEP and/or USEPA.
Notwithstanding anything in this Agreement to the contrary, to the
extent that Trump exercises the Purchase Option (or the
purchase
8
***CONFIDENTIAL TREATMENT REQUESTED
***
option set forth in the Ground Lease) prior to
Owner obtaining the final report approval letter as required
hereunder, Owner shall be required to execute and deliver to Trump
at Closing an Act 2 Buyer/Seller Agreement in the form attached
hereto as Exhibit G and made a part hereof (and any changes
thereto in form or substance shall require the consent of Trump,
which consent shall not be unreasonably withheld, conditioned or
delayed);
(iii) Post-Remediation Care .
Provide Trump with a copy of any post-remediation care program that
may be required in order to obtain the final report approval letter
required herein or in connection with the Remediation and Removal
(as defined below), it being understood and agreed that to the
extent that Trump exercises the Purchase Option (or the purchase
option set forth in the Ground Lease), Trump shall be responsible
for, and shall expressly assume in an enforceable agreement with
PADEP, the performance of any such post-remediation care program;
and
(iv) Underground Storage Tank and
X-Ray Building . In compliance with applicable Environmental
Laws (a) remove, transport and dispose of the existing 2,000
gallon underground storage tank and all equipment ancillary thereto
(collectively, the “UST”) located on the Property
identified as “tank no. 26” in a August 7, 2003
letter report prepared by O’Brien & Gere for
ThyssenKrupp-Budd Company, and remediate all Hazardous Substances
and/or Hazardous Materials encountered in connection or associated
with closure of the UST to an Act 2 remediation standard as
reasonably selected by Owner; and (b) remove, transport and
dispose of the existing x-ray building and hot cell, vault and
foundations, footings and all ancillary equipment, utilities and/or
fixtures related to the foregoing (collectively, the X-Ray
Building”) including all radioactive soil, waste and/or
materials and all other Hazardous Substances and/or Hazardous
Materials in connection or associated with the X-Ray Building to a
maximum depth of 3’ feet below the bottom of the x-ray
building (as opposed to the bottom of the x-ray building footings)
(the undertakings described in clauses (a) and
(b) together, the “Remediation and Removal”). In
connection with the removal of the X-Ray Building, Owner shall
perform a site assessment and adequately delineate contamination,
if any, for purposes of obtaining an Act 2 release. Owner shall
cause the Remediation and Removal to be performed by environmental
engineers and contractors reasonably acceptable to Trump, in a
commercially reasonable manner, using remediation techniques and
practices acceptable to PADEP and in compliance with Environmental
Laws. All Remediation and Removal work in connection with the X-Ray
Building shall be completed so as to meet an Act 2 site specific
remediation standard, provided that all radioactive contaminated
materials shall meet the applicable standard established by USEPA
and the United States Nuclear Regulatory Commission
(“NRC”). Owner shall promptly provide Trump with all
closure and/or final reports generated through performance of the
Remediation and Removal, together with all other documents
exchanged with PADEP, USEPA and/or NRC to effectuate an Act 2
release for the Remediation and Removal. Trump acknowledges that
deed notices and/or deed restrictions may be required in connection
with the Remediation and Removal, and Trump agrees to cooperate
reasonably with Owner in creating and recording such notices and/or
restrictions, at no out-of-pocket cost to Trump, provided that such
deed notices and/or deed restrictions do not unreasonably interfere
with Trump’s construction, operation and/or maintenance of a
hotel and gaming establishment on the Property. Trump further
acknowledges that engineering controls may be required in
connection with Owner’s performance of the Remediation and
Removal. Prior to instituting such controls, Owner shall obtain
Trump’s express written consent to implement the controls,
such consent not to be unreasonably withheld. Such controls are to
be implemented by or on behalf of Owner at no out-of-pocket cost to
Trump and shall not unreasonably
9
***CONFIDENTIAL TREATMENT REQUESTED
***
interfere with Trump’s construction,
operation or maintenance of a hotel and gaming establishment on the
Property. Trump acknowledges that capping with asphalt or other
material satisfactory to PADEP, USEPA and NRC would not
unreasonably interfere with such construction, operation or
maintenance. Trump further acknowledges that in the event Owner
obtains an Act 2 release in connection with the Remediation and
Removal as contemplated by the NIR and the Cleanup Plan, Trump may
not be able to construct, operate and/or maintain a hotel and
gaming establishment, or other improvement, on the Property without
first performing further environmental investigation and/or cleanup
in order to meet requirements of PADEP and/or USEPA.
b. None of the undertaking described
in Section 8(a) shall require that Owner investigate or
remediate ground water.
c. In the event Trump timely and
properly delivers either the Lease Exercise Documents or Purchase
Exercise Documents, then Trump shall pay to Owner up to Two Hundred
Thousand and 00/100ths ($200,000.00) Dollars by way of
reimbursement of Owner’s actual out-of-pocket costs incurred
and paid for the Remediation and Removal, which payment shall be
made to Owner upon the later of (y) either Trump’s
receipt of the fully executed Ground Lease or Closing pursuant to
the Purchase Option, as applicable, and (z) Owner’s
satisfaction of each of its obligations under this Section 8
and, in each case, Owner’s delivery to Trump of such evidence
of the cost of the Remediation and Removal as Trump may reasonably
require. Payment by Trump to Owner of any sums pursuant to this
Section 8 shall not constitute or be deemed to constitute an
undertaking by Trump, or a transfer, of any obl
